OGBARO WALE v. THE STATE (2019)

OGBARO WALE v. THE STATE

(2019)LCN/12994(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/AK/192C/2013

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

OGBARO WALE – Appellant(s)

AND

THE STATE – Respondent(s)

RATIO

WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE MUST LEAD TO A VERDICT

In Orji v. State (2008) 10 NWLR (pt. 1094) P. 31 par. B ? D it was held that circumstantial evidence capable of two interpretation, thus creating doubt, must lead to a verdict that the charge has not been proved beyond reasonable doubt and the accused is to be discharged and acquitted of the offence charged; see also Ojo v. FRN (2008) 11 NWLR (pt. 1099) p. 467 at 530 par. C ? D. PER DANJUMA, J.C.A.

WHETHER OR NOT THE COURT CAN GRANT A RELIEF NOT CLAIMED BY PARTIES

The cardinal principle of the law is that the Courts are not charitable institutions that would grant a relief that is not claimed by a party. It must confine itself within the walls of the reliefs a party approached it for and not to undertake its own generous acts of awarding reliefs not sought. Kalio v. Kalio (1975) 2 SC 15 Okeowo v. Migliore (1979) 11 SC 38; Omoboriowo v. Ajasin (1984) 1 SCNLR 108. PER DANJUMA, J.C.A.

WHETHER OR NOT THE ISSUE OF FAIR HEARING BORDERS ON THE JURISDICTION OF THE COURT

This constitutional infraction of the right of fair hearing and fair trial, in the circumstances, violated the Appellant?s right on the presumption of innocence until proved guilty. Section 35(6) of the Constitution, 1999 is in point. This issue of fair hearing borders on jurisdiction of the Court and may be raised even suo motu by this Court in the face of the non ? availability of credible evidence and the direct admissible evidence linking the Appellant. See Supramania v. State (Privy Council) 1963 see also Saraki v. FRN (2018) (pt. 1646) 16 NWLR 405 ? 602. PER DANJUMA, J.C.A.

WHETHER OR NOT THE THE PROCSCUTION HAS AN OBLIGATION TO CALL A WITNESS

In Saraki v. FRN (supra) Nweze, JSC stated at page 449 E of the Report thus: – Whereas the law is well ? settled that the prosecution is duty bound to call all material witnesses R v. Adebanjo (1935) 2 WACA 35; Chukwu v. The State (1992) 1 NWLR (pt. 217) 255, State v. Ajie (2000) 7 SCNJ1 (2000) 11 NWLR (pt. 678) 434,? And has no obligation to call a witness, unless his testimony has any bearing or relevance to the case of the prosecution, R. v. Yeboah (1954) 14 WACA 484, Chukwu v. The State (supra). PER DANJUMA, J.C.A.

CIRCUMSTANCES WHERE IDENTIFICATION PARADE IS REQUIRED

In the case of UKPABI V STATE (2004) 11 NWLR, PT 884, 439, the Supreme Court held that although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential or required in the following instances: –

1) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;

2) Where the victim or witness was confronted by the offender for a very short time; and

3) Where the victim due to time and circumstance might not have had the full opportunity of observing the features of the accused. See also the apex Court case of EBRI V STATE (2004) 11 NWLR, PT 885, 589. PER MAHMOUD, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the decision of the High Court of Justice Ondo State delivered on the 6th day of May 2013 Suit No. AK/34C/011 wherein His Lordship O. O. Akerodolu, J, (as he then was, – now C. J.)

Convicted and sentenced the Appellant who was the first Accused person to a term of 25 years imprisonment for robbery pursuant to Section 1 (1) of the Robbery and Fire Arms (Special Prohibitions) Act 1990, LFN, 2004 and the 2nd Accused person to 21 years imprisonment.

The facts leading to the trial, conviction and sentence are, in their comprehensiveness in capture/narration of the Record of Appeal as set out by the learned Respondent?s counsel in his summary of facts; I shall and do accordingly adopt the same. They are set out verbatim thus:

SUMMARY OF FACTS

?On the 20th day of December, 2012, the Appellant was arraigned before an Akure High Court, on two count charge of conspiracy to commit armed robbery, and armed robbery pursuant to Section 6 (b), and Section 1 (2) (a) respectively, of the Robbery and Firearms (Special Provisions)

Act, Cap R 11, Vol. 14 Laws of the Federation of Nigeria 2004.

The Appellant pleaded not guilty to the offence contained in the charge. The case thereafter proceeded to trial, wherein the prosecution (Respondent) called 2 witnesses, while the Appellant testified in his own defence. Exhibits P1, P2, P3 ? P3AZ51, P4, P5, P6, P7, P8, P9, P10, P10B, P11 and P12 were tendered and admitted in the course of the trial.

The case for the prosecution was that on the 13th of July, 2011, about 10.30pm, PW1 was at home with his two brothers named Akinduro Felix and Agbaraku Andy, his gate was locked but the main door was not locked. The Appellant and another person named Kehinde Peter suddenly came in and ordered PW1 and his brothers to lie down or else they would be shot, thereafter they demanded for money and PW1 gave them the sum of N903, 750 00, they also dispossessed PW1 of (10) phones, (2) Laptops and (1) PSP game. They locked PW1 and Akinduro Felix in the toilet but they did not see Andy Agbaruku who was in the room throughout the operation, Andy was the one who opened the toilet door for them after the operation. The case was reported at Ijapo Police

Station and on the next day PW1 gave the numbers of the phone to some persons in his place of work. On the 19th of July one of the stolen phones one Nokia E5 was seen with Taiye Arasokun by Andy Agbakuru and the development was reported at SARS office. Taiye Arasokun later claimed she bought the phone from one Gelete who took them to one Patrick at NEPA, it was Patrick who disclosed that the purchased the phone from the Appellant, the co-accused named Kehinde was in a beer parlour at the point in time. When the police got to the beer parlour they arrested all those who were present, the co-accused named Kehinde tried to escape by jumping out of the police patrol vehicle, afterwards he confessed to the police while PW1 was there that the Appellant was their gang leader. The police went to the Appellant?s house and arrested him, he narrated how the money was shared to them and they were able to recover 6 phones and the PSP game from him and Kehinde while the laptop and the remaining phones were said to have been sold to one Orji.

The case of the Appellant was a flat denial of the robbery accusation. He maintained that he was at home with his wife when

one Inspector Mike called and informed him that his car which was recovered from some men suspected to be armed robbers have been detained at SARS. When he arrived at the SARS office the next morning he informed the police that one Abe came to his house and requested for the use of his car to carry furniture. One police officer known as Lateef thereafter informed him that the person who requested for the use of the car was arrested around the stadium where he was enjoying. 3 men were brought out and he was able to identify Abiodun as the person he gave his car to. He was later informed that they found one handset the boys said they went to rob somewhere on Abe and so the Appellant would be kept in the cell with other accused persons till the owner of the handset comes to the station the next day.

At the close of evidence from both sides, and addresses by counsel, the learned trial judge in a judgment delivered on the 6th day of May, 2013, found the Appellant guilty of the offence of robbery. The Appellant being dissatisfied with his conviction and sentence filed his Notice of Appeal on the 30th of May. 2013.

?The Notice of Appeal filed by the

Appellant and on 30 ? 5 ? 2013 and signed personally is as contained at page 78 of the Record of Appeal. It is an omnibus ground of Appeal and couched thus: –

?That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.

2. That additional grounds of appeal will be forwarded on receipt of the record of proceedings

—————————–

Signature or mark of Applicant?

There is no doubt that the omnibus Ground of Appeal filed in this Criminal Appeal is incompetent. There will, in law, be no appeal based upon this ground as done. This is because, in a criminal appeal, the Ground of Appeal shall be that ?the decision is unreasonable and cannot be supported by the evidence? Criminal cases are proved not upon the weight of evidence or preponderance of evidence, as this is what obtains only in the proof of Civil Matters/Cases. It is therein that the question of weight based upon the imaginary scale and its weight and swinging and tilting of the pendulum comes into play.

As an incompetent Ground of Appeal cannot be amended, there was

actually nothing to amend as relating to the GROUNDS OF APPEAL AS FILED.

However, Additional Grounds may be filed with leave of Court. This was so done but upon an application to amend the said incompetent and unamendable Ground of Appeal, which was still regurgitated as Ground Number One in the Amended Notice and Grounds of Appeal filed on 3 ? 11 ? 2017 but deemed filed on 24 ? 9 ? 2018. The incompetent omnibus Ground of Appeal is deemed not to exist in law.

In the interest of justice, this Criminal Appeal shall have its Grounds 2 ? 4 subsisting as valid Grounds for consideration of this appeal. As it is the Notice of Appeal that was deemed amended.

The Appellant had formulated 4 issues for the determination of the Appeal. They are as contained in his learned counsel?s Brief of Argument filed on 13 ? 12 ? 2017 and deemed filed on 6 ? 2 ? 2019. The Issues relate to (a) Identification of the Appellant as an accused participant at the alleged Robbery, issue 2, (b) The burden of proof and its oscillating nature (c) The non calling of some two witnesses as prosecution witnesses which the

Appellant considers. Vital and material witnesses who have been withheld.

On the whole, the learned counsel urges that the Appeal be dismissed upon the issues raised and argued; and that his client be discharged and acquitted for the want of proof beyond reasonable doubt of the guilt on the offences for which he was charged and on all the counts.

On its part, the respondent adopted with modifications the issues formatted by the Appellant and recouched same and as Grounded on Grounds 1 ? 4. The issue is made solo as herein, thus:

Whether the prosecution was able to prove beyond reasonable doubt the ingredients of the offences of robbery against the Appellant based on the circumstances of the case.

I have thoroughly studied the Record of Appeal and the Briefs of Argument as filed by the respective parties. I note that whilst the Appellant appeals against the totality of the conviction and sentence as per the charge on all the counts and the Respondent ? contends that the charges were proved and the judgment be allowed to stand. The Appellant was not convicted on any of the counts as charged; on the contrary, he was discharged as

he was not found guilty on any of the counts charged. It is the Appellant?s appeal against the conviction on the counts charged. It is as reconfirmed by the submissions of his learned counsel.

I would have been content to also dismiss this appeal in lamine as incompetent, since it is not an appeal against the conviction and sentence founded on any of the counts charged and upon which the Appellant was found not guilty for lack of proof. Where then was the basis of Appeal that did not arise from the ratio of the judgment? However, there is jurisdiction to do justice where an aggrieved has approached a court. It exists in the courts as the ibi remedium ubi jus dictum.

This is more so in a Criminal Appeal involving the liberty of a subject and where terms of imprisonment, as in this case, a term of imprisonment of 25 years has been imposed and with its attendant infamy and deprivation of liberty and all other incidental deprivations of rights as constitutionally ordained. It is for the aforesaid reason that I shall and will in the interest of justice proceed to consider whether the conviction and sentence upon the lesser offence of Robbery

simplicter was in order. The courts will grant a hearing under its inherent powers. Now, what were the criminal charges and evidence led in proof of the offence upon which conviction was made?

The Appellant was charged in count one for conspiracy contrary to and punishable under section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap 11, Vol. 14, Laws of the Federation of Nigeria, 2004.

He was not convicted thereon and hence there is no appeal thereto. The 3rd count relates to the offence of receiving stolen property and concerns not the Appellant, herein but one Faloye Abiodun. There was no conviction thereon and it is, therefore, not in issue in the appeal.

What concerns the Appellant herein, is the 2nd count on Armed Robbery Contrary Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap Rule 11, Vol. 14, Laws of the Federation of Nigeria, 2004. By the Criminal Procedure Act of Ondo State a person charged with an offence may where the evidence discloses the commission of a lesser offence may sentence on that lesser offence proved.

That is what the court of trial did.

In his judgment at page 77 thereof, the learned judge stated in part thus:

?The only evidence that suggests that the robbery was armed robbery is what PW1 said. The evidence is that the robbers threatened to shoot. Armed is robbery by violence. PW1 did not tell the court that he saw guns or any offensive weapon. I do not agree with the prosecution that the evidence of armed robbery of armed robbery has been adduced before the court. In my humble opinion, what the prosecution proved beyond reasonable doubt is robbery under Section (1) (1) of the Robbery and Firearms (Special Provisions) Act 2004. Section (1) (1) of the Act Provides as that:

Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years.

I find the Accused persons guilty of robbery.

I hereby sentence the 1st accused Ogbaro Wale to 25 years imprisonment.

I hereby sentence Kehinde Peter to 21 years imprisonment.?

?The learned trial judge had found that the 1st Accused, who is the Appellant herein had not denied selling Exhibit P1 to one Patrick. Exhibits P4 ? P10B were House hold items

that were recovered from the 1st Accused/Appellant herein. The trial judge believed that they were purchased with the monetary share from the Robbery.

The Appellant herein had in evidence against him the testimony of PW2, Exhibits P4 ? P10B and his confessional Statement, Exhibit P12.

The learned trial judge had found in respect of the appellant as 1st Accused, thus:

?In this case, the statement of the 1st accused ? person, Exhibit P12 shows that he went in company of Kehinde Peter the 2nd accused to rob PW1 and the items stolen are mentioned in statement. How money was shared and the purpose for which he spent his share of the money is contained in the statement. The items he purchased with the money is stated in the Exhibit P12?

Exhibit P12 is as stated by the witnesses PW1 and PW2. PW1, one of the principal victims in his evidence as contained at pages 25 ? 28 clearly showed that there was the stealing by threat of force or the instilling of fear on PW1 and the consequent theft.

?The Recovery of the Nokia Handset identified and traced to one of the alleged members of the gang and the consequent linking

of the Appellant herein and his arrest was evidence obtained pursuant to investigation and was admissible and a relevant fact.

The Appellant?s counsel had argued that there was no evidence of identification as the Appellant was not known to the PW1 before the Robbery. Furthermore that it was in the night and in a fleeting moment.

The Respondent had argued, per contra, that the generator was on with light and he saw the faces briefly before they were ordered to lie down. The identification no doubt, was only based on a fleeting moment; light been on did not matter, as the PW1 by his ipxi dixit only saw the Appellant for the first time, and during the encounter; identification was such that the Appellant relying on Bozin v. State; Bashaya v. State (1998) 4 SCNJ 202; Chukwu v. State (1996) 7 NWLR (pt. 63) 686, Ikemson v. State (1998) 3 NWLR (pt. 110) 455 had argued in his issue 202 on identification that the benefit of doubt ought to have been exercised in favour of the Appellant.

That in the absence of proper identification a verdict of ?Not guilty? should have been entered. Otti v. State (1993) 4 NWLR (Pt. 290) 675; Adamu v. State

(1991) 4 NWLR (Pt. 187) 530 and a galaxy of other cases were relied upon and finally submitted that since the Appellant was not identified specifically by PW1, he evidence relating to him as being the one who went into the Appellant?s room with the other persons and ordered that they lie down else he was going to ?gun them down? and thereafter proceeded to steal from them cannot be a reliable piece of evidence to act upon. Patrick Ikemson v. The State (1989) 3 NWLR (pt. 110) 455; (1981) LRN.

The Respondent?s learned counsel, in the Respondent?s Brief of Argument had submitted at paragraphs 4.39 to 4. 47 of pages 14 ? 15 thereof that the Appellant was only making a mountain out of a mole hill on the question of the identification of the Appellant.

The learned counsel had submitted that the PW1 was consistent and gave unassailable evidence as per ?the identity and description of the Appellant on the day of the robbery? (underlining is mine, for emphasis). The learned counsel reproduced the extracts or excerpts of PW1?s evidence in cross ? examination, thus: ?there was no light when

the incident occurred but we put on the generator —PW2 – ?When they came in, I was instructed to lie down. I immediately they came I look at them before obeying their instruction. I looked at their faces briefly before I was asked to lie down.?

The learned counsel had argued that the encounter was for long period and not a fleeting moment; that the need for an identification parade was obviated and referring to Ikemson v. The State (supra) and Madagwa v. The State (1988) 5 NWLR (pt. 92) 60, submitted that there was unequivocal and consistent evidence that the Appellant committed the offence and was seen.

Upon this issue alone, this Appeal can be determined. The first and the determinant primary ingredient of an offence is the identity of the suspect or accused ? person.

In the matter at hand, contrary to the contention of the Respondent?s counsel that the Appellant was identified and described there was no such evidence of identity let alone description led at the trial Court. The excerpts of the evidence of PW1 and PW2 sought to be relied upon does not show that fact; to the contrary, it supports the Appellant?s

argument on non identification of the Appellant as one of those persons that robbed the PW1.

The learned trial judge clearly agrees to that contention but found anchor on Exhibit P12 (the confessional statement as proofs of the fact of robbery and items tendered. Exhibit P12 is still part of the prosecution?s evidence and rightly admitted.

However, where that admissible evidence, upon which conviction may be based is not corroborated, no matter how slight, with some other evidence suggesting or showing that it is likely to be true and consistent with other facts proved which tends to show the guilt of the accused, the Court should be wary of acting on the said evidence of confession.

Herein, identification was most unreliable and indeed not proved. The content thereof, of statement and reference to any goods, the subject of theft may be a subject of further investigation or charge and certainly not to be used to found a conviction on the instant charge of robbery, wherein he had not been identified as a perpetrator/participant therein of an armed robbery.

?I have strained to find out if he might be one that had identified himself by

himself as a participant criminis in the robbery. He has not, as the confession is tied to the specific Armed Robbery where the victim did not identify the culprits and arms or use of offensive weapon was held not proved.

I wonder why the Appellant was not charged with the offence of being in possession of properties reasonably suspected to have been stolen, at the least. If any of the properties stolen were traced to him, he could be charged with receiving stolen property or even abetment of robbery by unknown persons where as in this case if robbery and been proved and if such goods stolen were found with him. Since there is no time bar or application of the statute of limitation to Criminal Investigation and Prosecution, the door is not closed. The prosecution is not foreclosed.

Accordingly, I resolve the determinant issue of identification in favour of the Appellant and against the Respondent, and accordingly allow the appeal herein on this issue.

?The Appellant had also argued that the prosecution had not called Patrick and Adeniyimi a. k. a. Gelete as witnesses as the prosecution had shown that a Nokia E5 phone ? one of the items

stolen from the victim (PW1) was traced to the Appellant per the evidence led on the investigation. It was argued that the failure to call those persons as witnesses was fatal to the prosecution?s case as it amounted to the act of withholding evidence pursuant to Section 149(1)(a) of the Evidence Act.

The Respondent had snapped back that the prosecution was not bound to call any particular person(s) or any number of witnesses, as it had a prerogative to so do; that once it had proved its case with any evidence led, so be it. It relies on Ochiba v. The State (2011) 17 NWLR (pt. 1277) 663 @ 694 C A ? B. That the defence may call such a person if it so desired.

In the instant case, I think, clearly, that while the prosecution is at liberty to call any number or who so ever as a witness so long as he is competent or whatever type of ? admissible and reliable evidence to prove its case, nonetheless it had the bounden duty of calling relevant and vital witnesses or evidence if it must be held that it had proved its case beyond reasonable doubt.

?The Appellant is, therefore, right in this appeal that that the failure to call Patrick

and Adeniyimi a. k. a. Gelete was fatal. They were indispensable and vital witnesses in proof of how they got the items found with them and how it could be linked to the theft or robbery involving those goods.

The cases of Nnolim v. State (1993) 9 NWLR (pt. 283) P. 569 ? P. 581 Par. B and Edoho v. State (2002) 5 NWLR (pt. 865) 17 at 51 par. A ? C citing George Karee v. R. 7 WACA 175; Amusa & Ors v. The State (1986) 3 NWLR (pt. 30) 536 and Section 149(1)(d) Evidence Act 1990 are apt and applicable. The omission to call these persons as witnesses had thrown a spanner in the wheel of the Respondent?s case at the trial Court, rendering the case unproved and on mere suspicion.

The Appellant had argued thus at paragraph 6.3 ? 6.4 page 23 of his Brief of Argument as follows: –

?We submit with respect, that prosecutions (sic) failure to call Patrick and Adeniyimi a.k.a. Gelete as witnesses was fatal to the case of the prosecution vis ? a vis proof of essential ingredient of the offence, namely proof of recovery of stolen properties of PW1 by the Appellant.?

?The learned counsel also contended that fielding

the duo of Patrick and Adeniyimi a.k.a. Gelete as witnesses would have cleared the doubt on whether the appellant indeed sold the alleged recovered phones and PSP to them. They would have also cleared the point whether the properties allegedly recovered from them was sold to them by the Appellant. That since these alleged receivers, who were the best witnesses, were not called, there was no indirect or circumstantial evidence, strong enough to prove robbery against the Appellant.

I agree with the Appellants learned counsel when he contended that the conviction was based on suspicion. In Orji v. State (2008) 10 NWLR (pt. 1094) P. 31 par. B ? D it was held that circumstantial evidence capable of two interpretation, thus creating doubt, must lead to a verdict that the charge has not been proved beyond reasonable doubt and the accused is to be discharged and acquitted of the offence charged; see also Ojo v. FRN (2008) 11 NWLR (pt. 1099) p. 467 at 530 par. C ? D referred to by the Appellant?s learned counsel. The Appellant?s guilt had not been proved even on the basis of circumstantial evidence that would have been used, drawing from

the testimonies of the said person not called as witnesses. The statement of the Appellant, alone, even if it implicates the said persons, cannot be evidence in proof of robbery. The hearsay testimony relating to the duo of Patrick and Adeniyimi is hearsay and inadmissible.

The charges upon the counts had been held not to have been proved at the trial Court. The trial Court upon the evidence led, had no business making a finding of guilt. It was not a finding upon a valid substitution of charge. There was no prayer before the lower Court for such a substitution and conviction as made.

In Administrator v. Aladeyelu (2007) 5 SCNJ1, where there was no challenge to the order appointing the 6th Appellant nor an application seeking the setting aside the declaration Registered in 1995, the Supreme Court held thus:

1. The Court of Appeal has no business what so ever of deciding the issues raised in the main trial by setting aside the appointment of 6th Appellant and also by setting aside the declaration registered in 1995—.

2. There was also no prayer nor application placed before the trial Court for the setting aside of either the appointment

of the 6th Appellant or the setting aside of the New declaration which has since been embodied in a Law, Edict No. 1 of 1999.

In any event, there were no prayers before the trial High Court grounding the orders made by the Court (page 7 of the Report).

There was no prayers by the prosecution, i.e the Respondent herein that the Accused/Appellant be convicted for the lesser offence of Robbery per se, though not charged and that evidence had so disclosed that offence.

The learned trial judge had suo motu proceeded to convict upon that offence of Robbery, upon no application by the prosecution/respondent, no response from the Appellant.

That a trial Court may proceed to convict on a lesser charge proved, does not in my view mean that the accused person like the Appellant herein shall not be asked afresh to plead to the lesser offence disclosed.

The conviction on a lesser offence disclosed in any case would have been an act to be exercised on the use of utmost judicious discretion. Such exercise of discretion, if improperly exercised, will be interfered with and the decision set aside. In the State v. Samson Gali 2 PLR 111 at page 120, this

Court had this to say:

?Finally, since the respondent has not been charged to Court and has not elected to be tried summarily, the possibility of his being deprived of his constitutional right to be so tried does not arise and there is, therefore, no justification for the learned trial judge to advert to this as all.?

Contrary to the above and as it?s opposite is that fact that the Appellant has been charged to Court and has not elected to be tried summarily on the offence of Robbery per se and to be convicted thereon brevi manu, was in violation of his constitutional right to fair hearing.

It was incumbent on the trial judge to have adverted his mind to this fact. It seems to me that he has failed to exercise his discretion judiciously. He has failed to take into consideration the evidence of the Appellant and the PW1 on identification. The judge?s order convicting the Appellant on the lesser offence was in the circumstance erroneous.

A Court cannot legally award to a party what it had not asked for (ie sought). See Odunze v. Nwosu (2007) 5 SCN ? 234 at 273 (see the contribution of Onnoghen (JSC) as he then was (now CJN).

?The Appellant needed to be informed promptly and in detail the nature of the new offence of Robbery per se and given adequate time and facilities for his

defence. It was not to be, in this brevi manu conviction. See Section 36(6) (a) (3) of 1999 Constitution, FRN, in Saraki v. FRN (supra) Nweze, JSC in his lead judgment stated in part as follows:-

?It is the law that the failure of the trial Court or tribunal to administer justice between the parties, in criminal proceedings in the manner mandatorily required by law amounts to miscarriage of justice Harunami v. Borno N. A. (1967) NNLR 19——-?

The Appellant should not have been supplanted into the drudgery of a presumed guilt of a heinous though lesser offence of robbery not charged and in respect of which there was no evidence available, the prosecution having failed to call all material witnesses.

In Saraki v. FRN (supra) Nweze, JSC stated at page 449 E of the Report thus: –

?Whereas the law is well ? settled that the prosecution is duty bound to call all material witnesses R v. Adebanjo (1935) 2 WACA 35; Chukwu v. The State (1992) 1 NWLR (pt. 217) 255, State v. Ajie (2000) 7 SCNJ1 (2000) 11 NWLR (pt. 678) 434,?

?And has no obligation to call a witness, unless his testimony has any bearing or relevance

to the case of the prosecution, R. v. Yeboah (1954) 14 WACA 484, Chukwu v. The State (supra).

The trial judge ought with respect to have appreciated that the duty of the prosecution to call vital witnesses was not qualified. He had to call them so long as it had a bearing on the prosecution?s case and is relevant. Refusing to call them and suffering the fate of a finding that it had not proved its case beyond reasonable doubt will not, be a qualification to relieve her of the burden of proof of any other offence allegedly, in the Court?s view to have been committed in the said incident.

The failure of evidence to prove the specific offence of armed robbery will not supplant the Respondent?s duty to prove any other offence ? beyond reasonable doubt.

It is for this reason that section 1 subsection of the Robbery and Firearms (Special Provisions) Act 2004 provides that:

?Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years.?

Appellant had not been tried for Robbery allegedly disclosed and could not have been

legally convicted and sentenced, in travesty of the law. The Appellant was entitled to keep mute until his guilt was proved beyond reasonable doubt.

He had no obligation of resorting and reacting to the inadmissible evidence relating to him or to the tender of the exhibits as there was the primary fixation of the onus of proof beyond reasonable doubt on the prosecution and to be based on admissible evidence and not hearsay evidence. See Saraki v. FRN (supra).

There was heavy reliance on the hearsay evidence of PW1 by the trial Court in this matter as clearly seen in the judgment.

In summary and upon the grounds that:

(a) The identity of the Appellant had not been proved as participant in a robbery

(b) Secondly, there was the withholding of evidence by the non calling of vital prosecution witnesses and this had affected the case of the Respondent;

(d) Fourthly, there was a breach of the right of fair hearing as the Appellant was convicted for an offence not charged and against the presumption of innocence.

In consequence, this Court ought

to allow the appeal and to set aside the conviction and the sentence for the offence of Robbery as passed on the Appellant here-in. The Appellant ought to be discharged and acquitted for the want of proof of his guilt beyond reasonable doubt in respect of the offence of Robbery.

Accordingly, I so order that the judgment in Charge No. AK/34C/2011 THE STATE V. OGBARO WALE delivered on 6 ? 5 ? 2013 in the High Court of Ondo State, the subject of this appeal is set aside and the appeal against same is allowed.

?OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Mohammed A. Danjuma, JCA.

?I am at one with His Lordship that the appeal is meritorious and allow it accordingly. Consequentially, I equally set aside the judgment of the trial Court which convicted and sentenced the Appellant to twenty-one years in prison.

I hereby discharge and acquit the Appellant accordingly.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA ?

The facts of this case have been well set out in the lead judgment. I adopt them.

Identification parade or evidence was a crucial issue in this appeal. In the case of UKPABI V STATE (2004) 11 NWLR, PT 884, 439, the Supreme Court held that although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential or required in the following instances: –

1) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;

2) Where the victim or witness was confronted by the offender for a very short time; and

3) Where the victim due to time and circumstance might not have had the full opportunity of observing the features of the accused.

See also the apex Court case of EBRI V STATE (2004) 11 NWLR, PT 885, 589.

I find that all three instances exist in this case; that is that the three victims, PW 1 and his two brothers, Akinduro Felix and Andy Agbaniku, did not know the appellant before the commission of the offence, i.e. the robbery. They were confronted by the offender for a very short time. The

evidence on record is that the appellant and his co-offender Kehinde Peter went in suddenly to the house of the victims and asked them to lie down.

If the victims saw the faces of the offenders it will be very fleeting. Lastly the encounter was a robbery. There was time constraint and the victims might have been too scared to look at the robbers properly enough to observe any features. It follows therefore that in the circumstances of this case an identification parade was necessary. Failure to conduct one in this case may therefore be fatal.

I am however guided by the decision of this Court in the case of ARCHIBONG V STATE (2004) 1 NWLR, PT 855, 488 where it was held that when an accused person by his confession has identified himself, there would be no need for any further identification parade. The question to pose and perhaps answer at this stage is whether the appellant has by his confession identified himself? Exhibit P12 is the statement of the appellant who was the 1st accused at the trial Court. In it the appellant stated in part as follows: –

“On 13/7/2011 one of my friend named Segun ‘m’ came to me…… to a house at Ijapo extension and told me

that there is a guy there living in the house that have money and laptop and handset that me (sic) I should robbed (sic) him on the same date at about 11:30p.m I and one Kehinde Peter (aka white) entered the house and I asked them to kneel down which they do….”

To my mind the appellant has by this confession clearly identified himself as the person who together with Kehinde Peter robbed the house in dispute, that of PWI and his two brothers. An identification parade in my view is unnecessary in the circumstances and on the authority of ARCHIBONG V STATE (SUPRA). An identification parade in the circumstances if positive would have served as a corroborative evidence to Exhibit PI2, the confessional statement. This would have provided that extra evidence no matter how slight which would have corroborated the confessional statement and make it more probable that the confession is true.

It is however trite that an accused person can be convicted solely on his confessional statement. This is where the confessional statement has admitted all the essential elements of the offence. And where it shows unequivocally direct and positive

involvement of the accused in the crime for which he is charged, the Court can rely on it to convict him. See the Supreme Court case of MUSA V STATE (2018) 13 NWLR, PT 1636, 307 AT 317 PARAS c-D, 318 PARAS E-G & 319 PARAS D-E.

In the instant case, the confessional statement of the appellant is Exhibit PI2. It appears to meet all the conditions of being direct, positive, unequivocal and admitting of all the essential elements of the offence of robbery with which the appellant was convicted. The fact remains however as to whether in the circumstances of this case the Court should have acted on the confessional statement alone to convict the appellant the way she did without any evidence no matter how slight outside the confession to confirm that the confession is true. See the decision of this Court in IFEDAYO V THE STATE (2014) LPELR – 24232.

The appellant herein stated that he is not literate but speaks only Yoruba language. Exhibit PI2 was recorded in English. He retracted Exhibit P12 in his evidence in chief in Court. He also said he did not know his co-accused; Kehinde Peters before the case. While the confessional statement was not

inadmissible, I find that it was desirable for the trial Court to have had some corroborative evidence no matter how slight outside the confession which would make it probable that the confession was true. This is what Supreme Court held in the cases of EJINIMA V STATE (1991) 6 NWLR, PT 200, 627 AND KAREEM V FRN (NO. 2) (2002) 8 NWLR, PT 770, 664. See also the decision of this Court in GARBA V THE STATE (2016) LPELR ? 40773. The object of this requirement or rule is to ensure that the evidence relied on to convict the accused is credible. This becomes very paramount in current times when accused persons are full of allegations of the police especially SARS torturing them into signing/and or thumb printing pre recorded statements. I recognize that accused persons do make spurious allegations of torture against police officers to resile from their confessional statements. This to my mind makes it more imperative for the trial Court to secure an independent evidence to confirm a confessional statement before convicting solely on it. I am fortified in this position by the opinion of RHODES-VIVOUR, JSC in the case of OGUDO V STATE (2011) 18 NWLR PT 1278, 1

at 26 PARAS B-G where he held as follows:

“The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person’s extrajudicial statement is contrary to his testimony in Court. A Court can convict on the retracted confessional statement of an accused person but before this is properly done the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions:

(a) Is there anything outside the confession to show that it is true?

(b) Is it corroborated?

(d) Did the accused person have the opportunity of committing the offence charged?

(e) Is the confession possible?

(f) Is the confession consistent with other facts which have been ascertained and have been proved? See: KANU & ANOR V KING (1952) 14 WACA P. 30; MBENU V STATE (1988) 3 NWLR (PT. 84) P. 615;

STEPHEN V STATE (1986) 5 NWLR (PT. 46) P. 978.

Though, the Court can convict only on the extra-judicial confessional statement of the accused person but it is desirable to find some independent evidence. That is to say it is desirable to have outside the confession some evidence, be it slight of circumstances which make it probable that the confession was true. See: QUEEN V ITULE (1961) 2 SCNLR P. 183; ONOCHIE & 7 ORS V THE REPUBLIC (1966) NMLR P. 307; (1966) 1 SCNLR 204; EDHIGERE V STATE (1996) 8 NWLR (PT. 464) P. 1.”

I am also in all these guided by the age long legal maxim that it is better to let a hundred guilty men free than to convict one single man.

It is for this reason I find that the failure of the learned trial Court to base her conviction of the appellant on a piece of evidence outside and independent of Exhibit P12 is fatal to the case.

It is for these reasons and the fuller reasons contained in the lead Judgment that I join my learned brother in allowing this appeal and setting aside the conviction and sentence of the appellant by the trial Court. He is accordingly discharged and acquitted.

Appearances:

Ojo Joshua Akinwale, Esq.For Appellant(s)

Olubumi Niyi-Arjuwu (Director, Legal Drafting Ondo State Ministry of Justice, Akure)For Respondent(s)

Appearances

Ojo Joshua Akinwale, Esq.For Appellant

AND

Olubumi Niyi-Arjuwu (Director, Legal Drafting Ondo State Ministry of Justice, Akure)For Respondent