OKECHUKWU CHUKWU V. THE STATE (2012)

OKECHUKWU CHUKWU V. THE STATE

(2012)LCN/5523(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/OW/182/2010

RATIO

EVIDENCE: GENERAL RULE ON EVALUATION OF EVIDENCE

The general rule is that the evaluation of evidence and the ascription of probative value thereof reside within the province of the trial court that saw, heard and assessed the credibility of the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial Judge who had the singular advantage of seeing and hearing the witnesses. An appellate court has no such advantage and therefore the evaluation of the evidence, the findings of fact and apportioning of probative value thereto by trial courts is seriously protected by appellate courts, who are generally reluctant to interfere with the primary duty of the trial court. See P.T.F. v. W.P.C. LTD. (2007) 14 NWLR (Pt.1055) Pg.478; OMAYE v. OMAGU (2008) 7 NWLR (Pt.1087) Pg.461; GAGARAU V. PASHIRI (2006) 1 NWLR (Pt.962) Pg.52I; ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) Pg.593 and OJELEYE v. REGT. T.O.I.C. & S.C.N. (2003) 15 NWLR (Pt.1111) Pg.520.

a) Whether there is sufficient evidence to sustain the judgment; or
b) whether the trial court failed to make proper use of the opportunity it had of seeing, hearing and observing the witnesses; or
c) Whether the findings of fact by the trial court cannot be regarded as resulting from the evidence; or.
d) Whether the trial court has drawn wrong conclusion from accepted evidence or has taken erroneous view of the evidence adduced before it; or
e) whether the trial court’s findings are perverse in the sense that, they do not flow from accepted evidence or are not supported by evidence before it.

See AKINDIPE v. STATE, (2008) 15 NWLR (Pt.1111) Pg.560; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt.1018) Pg.385; P.T.F. v. W.P.C. LTD. (supra) at Pg.498 paras. A-E and ANYAFULU v. AGAZIE (2006) 5 NWLR (Pt.973) Pg.260. PER HARUNA M. TSAMMANI J.C.A.

EVIDENCE: REQUIREMENT FOR A CONTRADICTION TO DESTROY THE CREDIBILITY OF A WITNESS

It is the law that for a contradiction or contradictory statement or evidence to destroy the credibility of a witness, it must be a material contradiction, in the sense that, it is likely to create doubt in the mind of the court, as to the truth of that which is asserted. In other words, a contradiction in the prosecution’s case is fatal only when it goes to the root or substance of the case, and not when it is of a minor nature. See OMONGA v. STATE (2006) 14 NWLR (Pt.1000) Pg. 532; MAIYAKI v. STATE (2008) 15 NWLR (Pt.1109) Pg. 173; DAGAYYA v. STATE (2006) 7 NWLR (Pt. 980) Pg. 637 and GABRIEL v. THE STATE (1989) 5 NWLR (Pt.122) Pg. 457. PER HARUNA M. TSAMMANI J.C.A.

CRIMINAL LAW: NATURE OF AN ALIBI

Now, alibi is a radical defence, which simply means that the accused was at a place other than the place of the offence alleged and so could not possibly be at the scene of crime to partake in it. See OZAKI v. THE STATE (1990) 1 NWLR (Pt. 124) Pg. 92; AREMU v. THE STATE (1991) 7 NWLR (Pt.201) Pg.1 and NWABUEZE v. THE STATE (1988) 4 NWLR (Pt.86) Pg.16. Since the facts constituting the alibi are within the peculiar knowledge of the accused, and such witnesses as may be available, the onus is on the appellant to disclose at the earliest opportunity such facts with necessary particulars, so as to enable the police to investigate the authenticity of the alibi raised. It is not for the accused to prove his alibi. His duty is to bring forward the particulars, while the duty of the prosecution is to lead credible evidence to disprove same. See YANOR v. THE STATE (1965) NWLR Pg.337; IKONO & ANOR. v. THE STATE (1973) 5 S.C. Pg. 231.

It is therefore not enough for an accused person to raise the defence of alibi which is at large or without particulars. He must supply adequate particulars of his where about at the time the offence was alleged to have been committed, so as to assist the police to make meaningful investigation of the alibi. Thus, where an accused alleged, as in the instant case, that he was at a particular locality or with a particular person, he must supply information as to the specify place, home and/or address of the person, and the relevant period he was away from the scene of crime. See OKOSI v. THE STATE (1989) 1 NWLR (Pt.100) Pg. 642; GACHI v. THE STATE (1965) NMLR Pg. 333; OBIODE v. THE STATE (1970) 1 ALL NLR Pg. 35.

Where an accused person fails to supply the particulars of alibi, the police are not expected to go on a wild-goose chase or embark on a journey to nowhere. Once the alibi is sufficient and adequately raised, and the police fail to investigate, it may prove fatal to the prosecution’s case, as it would create a doubt in the case as presented by the prosecution. See AIGUOBARUEGHIAN & ANOR. v. THE STATE 17 N.S.C.Q.R. Pg. 442 AT 467 – 468; OKOSI v. STATE (supra) at Pg. 642 and ADEDEJI v. THE STATE (1971) 1 ALL N.L.R. Pg. 75. However, where the prosecution is able to lead or adduce sufficient and accepted evidence which fixes the accused person at the scene of crime at the material time, his alibi would have been effectively and logically demolished. See ARCHIBONG v. THE STATE (2006) 14 NWLR (Pt. 1000) Pg.349 at 396 – 397; DAGAYYA v. THE STATE 25 N.S.C.Q.R. Pg. 775; DOGO v. THE STATE (2001) 1 S.C. (Pt. II) Pg. 30 and EYISI v. THE STATE (2000) 12 S.C. Pg. 24. PER HARUNA M. TSAMMANI J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING THE GUILT OF THE ACCUSED

It is the law that the burden is always on the prosecution to proof the guilt of the accused beyond reasonable doubt. That burden does not shift, especially in view of eth presumption of innocence which enures in favour of the accused by virtue of section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. PER HARUNA M. TSAMMANI J.C.A.

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

OKECHUKWU CHUKWU – Appellant(s)

AND

THE STATE – Respondent(s)

HARUNA M. TSAMMANI J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of C. M. Egole; J of the Imo State High Court, sitting at Owerri delivered on the 19th day of December, 2008 in Charge No: HOW/23C/2008: wherein the Appellant was convicted and sentenced to death for having committed the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. 22, of the Laws of the Federation 1990, applicable to Imo State.
The case of the prosecution against the Appellant is that he, in company of two others, while armed with a gun(s) robbed Nnena Duru (P.W.1) of the sum of twenty-eight thousand Naira (N28,000.00) at Fair Field Guest House, Egbu-Owerri. That in the process, of committing the robbery, the Appellant inflicted serious injuries on the said Nnena, which led to her being hospitalized.
At the trial, the prosecution led evidence to show that, on the 16/12/2005, at about 10.30a.rn., the Appellant in company of two others arrived the Fair Field Guest House and met the P.W.1 (Nnena) alone. That the Appellant who was a regular visitor to the Guest House inquired from her whether Chinonso Duru (P.W.2) and Chinedu Egbe (P.W.3) who are staff of the Guest House and whom the Appellant regularly visited were around, and she told him that they had both gone out. The appellant then requested for a bottle of beer and a bottle of stout which Nnena served, and left to carry on with her usual chores in the kitchen. That the Appellant later met her in the kitchen and asked her the amount for renting a room, but she told him to go and wait for her in the V.I.P. Waiting Room with his friends and that she will join him later for an answer.
It is also the case of the prosecution that, at that instance the Appellant signaled his companions and the tall one joined the Appellant in the kitchen, and immediately produced a short gun which he pointed at Nnena (P.W.1). That the Appellant then ordered her to shut up and proceeded to tear her blouse, and used same to tie her hands to the back. He also tied her legs, blind-folded her and pushed her to the ground, and proceeded to heap two fifty litres jerry cans full of water on her. That the Appellant collected the keys to her room, and also wanted the keys to the cashier’s room, but it was abortive. That all the while the shorter person was in the V.I.P. Waiting Room monitoring movements. The Appellant could not get entrance into her room with the key he collected from her, so he took a pestle and used same to break into the room wherein he ransacked the room and stole the sum of twenty-eight thousand Naira (N28,000.00). It was further stated that in the process one Reginald saw her and came to her rescue. That on sighting the said Reginald, the Appellant and his two friends fled through the fence. The P.W.1 was then taken unconscious to the hospital for treatment from the injuries she sustained in the course of the robbery.
The Appellant admitted that he knew the Fair Field Guest House where he had visited a couple of times to see Chinonso whom he met when both of them were in detention for sundry offences. He also admitted knowing Nnena (P.W.1) who was alleged to have been robbed, and that she also knew him. He however denied ever visiting the Fair Field Guest House on the 16/12/2005 when the P.W.1 alleged she was robbed. He stated that on the date of the robbery, he was living in Lagos with his uncle, one Mr. Victor Nwosu, who works with N.T.A. Ikeja-Lagos. He therefore denied committing the offence of armed robbery alleged against him, and raised the defence of alibi.
At the trial, the prosecution called four witness, who testified as the P.W.1, P.W.2, P.W.3 and P.W.4 respectively. The Appellant testified in his defence and called one witness who testified as the D.W.2. At the close of evidence, parties were ordered to file and exchange Written Addresses. Thus, in a considered judgment delivered on the 19/12/2008, the learned trial Judge found the Appellant guilty of the offence of armed robbery and consequently sentenced him to death by hanging. It is against the conviction and sentence passed on him that the Appellant has appealed to this court.
The Notice of Appeal consisting of eleven (11) Grounds of Appeal was dated the 24/01/2009 and filed the 02/2/2009. However, on the 13/4/2011, this court granted the Appellant leave to file and argue one Additional Ground of Appeal, vide Motion on Notice filed the 23/11/2010. The Additional Ground of Appeal therefore makes a total of 12 Grounds of Appeal filed by the Appellant. For ease of reference, I take the pains to re-produce same here, but without their particulars. They are:
“1. The trial Judge misdirected himself in law when he held that the overt contradictions and inconsistencies in the evidence of P.W.1., the only alleged victim and eye witness in a capital trial is “immaterial” and thereby occasioned a miscarriage of justice.
2. The trial Judge misdirected himself in law when he drew the conclusion that P.W.1 knows the accused in relation to the robbery incident, and that she could identify him at anytime any day. He misapplied the case of OLALEKAN v. STATE (2001) 9 L.R.C.N. 3385 @ 3395.
3. The trial Judge misdirected himself in law when he held that evidence of P.W.2 and P.W.3 are not hearsay evidence upon which he convicted and sentenced the accused person.
4. The trial Judge erred in law when he held that statement made by P.W.1, P.W.2 and P.W.3 to the Police in the F.I.R. which was before him and adopted by the witnesses as their statement during trial are not before him and that acting on them amounts speculation.
5. The trial Judge gravely erred in law when he held that the fundamental issue of hospital, doctor’s medical report, police report and overt contradictions and inconsistencies in respect to hospital treatment of the only victim of alleged armed robbery is “immaterial” in establishing the alleged armed robbery.
6. The trial Judge erred in law when he held that the submission of defence counsel on the non-petition to the Commissioner of Police and non prompt mentioning of the name of the accused as a person who robbed the complainants until about four months was mis-conceived.
7. The trial Judge misdirected himself in law when he held that exhibit P2 is the 1st Statement of the accused person in relation to the case of armed robbery and that evidence of foot print was not cross-examined.
8. The trial court misdirected himself (sic) in law when he held that the prosecution prove (sic) the case of armed robbery against the accused.
9. The trial Judge erred in law by misapplying the principle in the case of PETER NWONMINKWO v. THE STATE (1995) 1 NWLR (Pt.372) Pg.432 at 443.
10. The trial Judge misdirected himself in law when he rejected the defence of Alibi on grounds that the accused did not raise it at the earliest opportunity.
11. The trial Judge misdirected himself in law when he failed to consider the case of malice and evidence of close relation (sic) existing between the P.W.1 and P.W.2 against the accused.
12. The learned trial Judge erred in law when he delivered judgment without hearing the final address of Appellant through his counsel thereby breached the Appellant (sic) Fundamental Right to fair hearing.
As required by the Rules of this court, the parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument was dated the 25/10/2010. Therein the Appellant formulated six (6) issues for determination as follows:
1. Whether from the totality of evidence adduced by the prosecution witnesses and circumstances of the case, there exists any sufficient credible and reliable evidence to establish the guilt of the Appellant as required by law. (Grounds 1, 2, 3, 5, 9 and 11).
2. Whether the learned trial Judge was right in rejecting the plea of alibi made by the Appellant at the earliest opportunity he was confronted with the petition tagged “Armed Robber”. (Ground 10).
3. Whether the learned trial Judge was right in attaching weight to Exhibit P2 when Appellant denied authorship. (Ground 7).
4. Whether the learned trial Judge was right in convicting Appellant based on the alleged petition tagged “Armed Robbery” rejecting the complaint of assault made at Owerri Urban Police and the legal effect of excluding the alleged petition upon which trial and conviction of Appellant was based. (Grounds 6 and 8).
5. Whether the learned trial Judge was right when he held that statement of P.W.1 was not before him acting on it will amount to “Speculation” when the statement was in proof of Information and Court’s file was adopted by P.W.1 as her statement during trial. (Ground 4).
6. Whether the learned trial Judge breached the rule of fair hearing when he adjourned for judgment and subsequently delivered judgment without giving Appellant or his counsel opportunity to address the court. (Ground 12).
It should be noted that upon being served the Respondent’s Brief of Argument, the Appellant filed a Reply Brief dated the 15/9/2011 and filed the 30/11/2011 out of time. However, the said Reply Brief was deemed filed the 09/5/2012 vide Motion on Notice dated 10/4/2012 and filed 03/5/2012.
The Respondent’s Brief of Argument was dated the 04/5/2011 and filed 10/5/2011. Therein, the Respondent formulated two (2) issues for determination in this appeal as follows:-
1. Whether the Respondent proved its case beyond reasonable doubt against the Appellant for the offence of Armed Robbery.
2. Whether the defence of alibi or any other defence availed the Appellant.
At the hearing of this appeal on the 09/5/2012, both parties adopted their respective Briefs of Argument as their arguments in this appeal.
I have carefully perused the issues as formulated by the Appellant and the Respondent. After a very careful consideration, I am of the view that issues 3, 4 and 5 as formulated by the Appellant can be subsumed into issue 1, while issues 2 and 6 can be considered separately. In that respect, issues 1, 3, 4 and 5 will be considered together, while issues 2 and 6 will be taken separately. When that is done, it will be seen that the two issues nominated by the Respondent are similar in substance with issues 1 and 2 nominated by the Appellant. I will therefore determine this appeal as formulated by the Appellant, but taken in the manner earlier indicated. However, in view of the issue raised in issue 6, I will consider that issue first.
On the said issue 6, learned Counsel for the Appellant contended that, after cross-examination of the accused, parties were directed to submit Written Addresses, and the matter adjourned for judgment to the 19/12/2008. That judgment was subsequently delivered on that date without giving the Appellant or his Counsel opportunity to address the court. He relied on the provisions of Sections 294(1) and 36(4) of the 1999 Constitution of the Federal Republic of Nigeria to submit that, the Appellant has the right of fair hearing which includes his right or that of his counsel to address the court. That by the case of SHALLA v. STATE (2008) ALL FWLR (Pt.397) Pg. 69, the address of counsel forms part of the case.
It was therefore submitted by learned counsel for the Appellant that, the judgment delivered on the 19/12/2008 without giving the Appellant or his counsel the opportunity to address the court is a breach of the Appellant’s constitutional right to fair hearing and therefore renders the trial inconclusive thereby leading to miscarriage of justice. That the order for submission of Written Addresses does not amount to hearing of the address, as what is required of the court is to give parties the opportunity to adumbrate and adopt their addresses in open court to the hearing of the Appellant before judgment. He then cited the case of MIKA’ILU v. STATE (2001) 8 NWLR (Pt.715) Pg. 469 at 484, to submit that the failure to hear the Appellant’s written Address in open court amounts to denial of fair hearing, and therefore the judgment given thereon is a nullity and ought to be set aside. He further relied on the case of OBODO v. OLOMU (1987) 3 NWLR (Pt.59) Pg.111 at 123 – 124.
It is the contention of learned D.P.P. for the Respondent that, the trial court at the conclusion of evidence, gave the defence and State Counsel an opportunity to submit Written Addresses, which was complied with before judgment was delivered. That the trial court considered fully the Addresses of counsel before arriving at its decision. That any further point not contained in the Appellant’s Written Address could have been contained in the Appellant’s concluding Address. Learned D.P.P. cited the case of R v. COBOLAH 10 W.A.C.A. Pg. 123 to submit that in any case, the trial court was at liberty to write its judgment before the final Addresses of counsel, as Addresses of counsel in the opinion of counsel are only intended to articulate facts of the case already presented by evidence before the court. The case of VASSILE v. PAAS INDUSTRIES (NIG.) LTD. (2003) 12 NWLR (Pt.681) Pg.347 was cited to further submit that, final address in any given case is not a sine qua non to determination of the case as counsel is not under any obligation to deliver final address.
Learned D.P.P. for the Respondent went on to submit that, Section 294(1) of the Constitution (supra), admits of an exception in sub-section 5 thereof, to the effect that, “the decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection 1 of this Section, unless the court exercising jurisdiction by way of Appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” It was therefore submitted by learned D.P.P. that, the non-reaching in open court of an already prepared and filed Address was duly considered by the trial court before arriving at a decision, and therefore does not constitute a miscarriage of justice or denial of fair hearing. Citing the case of KENOM v. TEKAM (2001) 14 NWLR (Pt.732) Pg.12, learned D.P.P. urged us to hold that the Appellant has not shown any injustice he has suffered or miscarriage of justice occasioned to him.
Now, Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as (amended) provides that:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is clear therefore that this provision prescribes the time within which the court is to deliver judgment and avail the parties with duly authenticated copies thereof. It has nothing to do with the complaint of the Appellant in this appeal. The complaint of the Appellant is that, after the lower court directed them to file and exchange Written Addresses, it did not avail them of the opportunity to present those addresses, by way of adumbrating and adopting same in open court. He does not even complain about the order on them to file their addresses. Section 294(1) of the Constitution (supra) has no relevance to the complaint of the Appellant. The relevant provision is Section 36(3) and (a) of the 1999 Constitution (supra). It stipulates thus:
36(3) The proceedings of a court or the proceedings of any Tribunal relating to the matters mentioned in subsection 1 of this Section (including the announcement of decision of the court or Tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or Tribunal.”
The proviso to this subsection is not relevant to the issue under consideration.
It would be seen therefore that the requirement of fair hearing in public, especially to a person charged with a criminal offence is a Constitutional requirement. It is meant to preclude hearing of causes or matters in private or in secret. Thus by Section 36(3) and (4) of the 1999 Constitution (supra), the proceedings of a court or Tribunal including the announcement of decisions shall be held in public. The hearing of the court in a particular cause starts from the filing of the action or writ as the case may be, the calling of evidence, the addresses of counsel and the pronouncement of judgment. In all these the proceedings must be in public. See A.C.B. PLC v. N.T.S. (NIG.) LTD. (2007) 1 NWLR (Pt.1016) Pg.596 and EDIBO v. STATE (2007) 13 NWLR (Pt.1051) Pg.306.
It should be noted however, that the Appellant’s complaint here, is not really that the trial court took any step in the proceeding before it in private. His complaint is that he was not afforded the opportunity to adumbrate on the written Addresses he had filed, and therefore, his right, to fair hearing was breached. The attribute of fair hearing presupposes that the court or Tribunal shall give opportunity to the person whose rights and obligations may be affected to make representation. In doing that the court must observe the twin pillars of natural justice, namely, audi alteram partem and nemo judex in causa sua. Thus, the right to fair hearing being a fundamentally guaranteed right by Section 36(1) and (2) of the 1999 Constitution (supra), its breach by any court or Tribunal, nullifies any action taken and indeed the entire proceedings. See U.N.T.H.M.B. v. NNOLI (1994) 8 NWLR (Pt. 363) Pg.376; ESHENAKE v. GBINIJE (2006) 1 NWLR (Pt. 961) Pg. 228; BOUNWE v. R.E.C. DELTA STATE (2006) 1 NWLR (Pt. 961) Pg. 286. The burden is on the party who complains that his Fundamental Right has been breached or denied to supply evidence to establish his claim. See OKIKE v. L.P.D.C. (2006) 1 NWLR (Pt.960) Pg. 67.
The Appellant does not complain that the judex had any personal interest in the matter. He complains that he was not heard in address before a decision in the case against him was reached. The audi alteram partem principle, as a rule of natural justice and of the ingredients of fair hearing requires that:
a) A court should hear both sides in all material issues in a case before it, before reaching a decision which may damnify any party in the case;
b) A court should give equal treatment, opportunities and consideration to all the parties;
c) A court or tribunal should ensure that justice is not only done, but must be seen to have been done.
The right of fair hearing is therefore a right which enures to both parties to the dispute. In its application therefore the court should not be seen to give any preferential treatment to one side at the expense or to the detriment of the other. Both sides must be treated equally. In the instant case, it is clear from the record that, both parties were directed to and did file Written Addresses before judgment. The judgment of the lower court as contained in the Record of Appeal show that the lower court considered the submissions of counsel thereon before reaching a decision on the case. Learned Appellant’s counsel has not shown that the trial court disregarded his Written Address or that he gave any preferential treatment to the Respondents. I therefore find from the record that the learned trial Judge gave equal opportunity to the parties to be heard in the case before him. Both parties did enjoy fair hearing before the lower court. The fact that the parties were not given the opportunity to adopt and adumbrate on their Written Addresses does not derogate from that fact. This issue is therefore resolved against the Appellant.
I had earlier indicated that I will take issues 1, 3, 4 and 5 together. I now proceed to do so, as it is evident that all those issues deal with the evaluation of the evidence by the lower court.
Now, arguing issue 1 learned Appellant’s counsel submitted that, the prosecution never proved the alleged armed robbery against the Appellant, as there was no positive evidence real or circumstantial linking him to the alleged armed robbery. He then cited the case of BELLO v. THE STATE (2007) ALL FWLR (Pt.396) Pg.704 at 719 paras. A-D, to submit that, for the prosecution to secure a conviction for the offence of armed robbery, they must prove that there was a robbery, the said robbery was an armed robbery and that the accused took part in the armed robbery. That the duty placed on the prosecution is to prove the guilt of the accused beyond reasonable doubt by adducing direct or circumstantial evidence, that positively and conclusively point to the accused and no other person as the culprit of the offence committed. He further cited the case of CHUKWU v. STATE (2007) ALL FWLR (Pt.389) Pg.1231 at Pg.1254 in support.
It is therefore contended by learned Appellant’s counsel that, the PW1 who is the only eye witness and victim of the offence charged, made contradictory and inconsistent statements on material issues which contradicted the testimonies of PW2 and PW3. That the two statements she made on the 06/3/2006 and 24/3/06 conflict with respect to the nature of her employment, and where she was when she was attacked. That in one statement she said she was a caterer and on the other she said she was a receptionist. That in one breath she said she was in the bar/reception when the Appellant came and that she sold soft drinks to him, in the other statement she denied selling drinks to him. Furthermore, that in one breath she said she knew the Appellant very well in another breath she denied knowing him. That her account of how she was attacked is also incredible. Learned Appellant’s counsel also submitted that, while the PW1 said she was robbed at about 10.30a.m., while she was washing meat to cook pepper soup, but stated that the money stolen from her was the money realized from sales of pepper soup realized that Thursday.
It is also the contention of learned counsel for the Appellant that, PW1, PW2 and PW3 contradicted each other as to who took the PW1 to hospital. That while PW1 stated that it was one Reginald who rescued her and took her to the hospital, the PW2 said he took her to the hospital, while PW3 said it was his brother called Chizoba who took her to the hospital. Learned counsel then submitted that despite those manifest contradictions and inconsistencies, the learned trial Judge held that they were immaterial to the determination of whether there was a robbery at Fair Field Guest House. He cited the cases of JOSHUA v. QUEEN (1964) 1 ALL NLR; OBRI v, STATE (1997) 7 NWLR (Pt.137) Pg.352; OPOLO v. STATE (1977) 11-12 S.C. Pg.6 and GABRIEL v. THE STATE (1989) 5 NWLR (Pt.122) Pg.451 to submit that when evidence is self contradictory, it lacks credibility and no court should act on it to convict.
Learned Appellant’s counsel also submitted that the case of NWOMINKWO v. STATE (1995) 1 NWLR Pt.372) Pg.432 applied by the learned trial Judge does not apply to the circumstances of this case because, the entire robbery account is incredible and improbable, and was never corroborated. He further cited the cases of UTTEH v. STATE (1992) 2 SCNJ (Pt.1) and AWUSE v. ODILI (2005) ALL FWLR (Pt.261) to submit that PW2 and PW3 admitted that they did not witness the alleged robbery attack on the PW1, yet the learned trial Judge held that their testimonies were not hearsay. He insisted that the testimonies of the PW2 and PW3 on the robbery attack on the PW1 was hearsay and therefore inadmissible. He then urged us to hold that the evidence of PW1 was never corroborated, it is contradictory, incredible and unreliable to ground a conviction, and to expunge the evidence of the PW2 and PW3 as being hearsay and therefore inadmissible.
On the issue of weight to attach to Exhibit P2, which the Appellant argued as his issue 3, learned Appellant’s counsel contended that the Investigating Police Officer (I.P.O.) who testified as the PW4 stated that, the Appellant volunteered a statement in the English Language. That statement is in evidence as Exh. P1. That the I.P.O. (PW4) however stated under cross examination that he was not the I.P.O. at the Owerri Urban Police Station where the investigation began and that no exhibit was transferred to him from the Owerri Urban Police Station. That the I.P.O. (PW4) did not identify any other statement or exhibit made by the Appellant in respect of the offence alleged, but the prosecution “smuggled” in Exh. P2 as a statement allegedly made by the accused, at the close of cross-examination. That in evaluating evidence, the learned trial Judge compared the handwriting in Exh. P1 with that in Exh. P2 to arriver at the conclusion that the Appellant was the matter of Exh. P2, and proceeded to attach heavy weight on same in convicting the Appellant. That the trial Judge did not conduct on the spot handwriting/signature test of the Appellant to enable him arrive at a fair conclusion of the authenticity of Exhibit P2. Learned counsel then drew a chart of what he considers as the numerous discrepancies, dissimilarities and inconsistencies in Exhibit P2 as against Exhibit P1.
It is also the submission of learned counsel for the Appellant that Exhibit P2 was never made in respect of the alleged armed robbery. That the Appellant denied making Exhibit P2 and the I.P.O. (PW4) did not say that apart from Exhibit P1, the Appellant made any other statement. The Police Officer before whom it was allegedly made was never identified and therefore not called to identify it. He cited the case of ONIMOLE v. ADEFOLABI (2008) ALL FWLR (Pt.438) Pg.339, to submit that, though the court was not precluded from admitting the statement, the learned trial Judge should not have attached weight to it.
On the issue of the petition tagged “Armed Robbery”, it is the contention of the Appellant that, the armed robbery allegedly took place on 16/12/2005. That there is no evidence that the matter was ever reported to any Police Station against the Appellant whom the PW1, PW2 and PW3 said they knew very well. That there was no evidence showing that a report was made in respect of the robbery before 06/3/2006 and nobody mentioned the name of the Appellant to the police as the person who attacked PW1 – on the 16/12/2005, before the fight on 06/3/2006.He submitted that the Appellant stated in his defence that he fought with PW2 at Relief Market Junction, Owerri on the 06/3/2006, which is about four (4) months after the robbery incident, and the PW2 sustained injury, as a result of which both himself and the PW2 were taken to Owerri Urban Police Station, where he (Appellant) was detained for assaulting the PW2. That the I.P.O. at Owerri Urban Police Station, “hands off” the case when he realized that there was a plot to change the case from assault to that of armed robbery, and the matter was then transferred to the State C.I.D. Owerri based on the Petition of PW1 and PW2, dated 06/3/2006, where he was confronted with the allegation of armed robbery. That the PW2 admitted that he wrote the Petition on the 06/3/2006, which is the day he fought the Appellant and which is about 4 months after the alleged robbery attack on the PW1, whereas the PW1 stated that she was alone in the Guest House and that apart from her, no other person witnessed the robbery incident.
Learned Appellant’s counsel therefore submitted that, the evidence on record show that PW1, PW2 and PW3 who knew the Appellant very well before the alleged robbery, never mentioned his name to the Police as the person who led unknown persons to rob the PW1 on the 16/12/2005 before the 06/3/2006. That the petition tagged “Armed Robbery” was made on 06/3/2006, while the alleged robbery took place on the 16/12/2005. He then submitted that the Petition alleging armed robbery against the Appellant after the fight between him and the PW2, wherein the PW2 sustained injury was an after-thought. He then cited the case of ABDULLAHI v. THE STATE (2008) ALL FWLR (Pt.432) Pg.1064, to submit that the evidence of the prosecution that there was a robbery is doubtful and that such doubt should be resolved in favour of the Appellant. That where a witness failed to mention the name of an accused whom he knows before the commission of the crime alleged to the Police at the earliest opportunity, that would detract from whatever credibility the trial court may wish to ascribe to such evidence.
Learned Appellant’s counsel also urged us to hold that the Petition which was not produced, if produced would be against the prosecution. Section 149(d) of the Evidence Act, L.F.N. 2004 was cited in support. We were then urged to hold that the alleged Petition is a hoax, a frame-up and indeed non-existent.
On the issue of extra judicial statement of the PW1, which was argued as issue 5, it is the submission of learned counsel for the Appellant that the PW1 admitted under cross-examination that she made statements to the Police on the 06/3/2006 and 24/3/2006. That in summarizing the evidence of PW1, the learned trial Judge made reference to those statements, yet he failed to advert his mind to the inconsistencies and material contradictions in those statements, but held that those statements of the PW1 were not before him, and so acting on them would amount to speculation. Learned counsel then submitted that, the statement of PW1 was before the trial court, and that the learned trial judge was entitled to look at the statement contained in his file while writing the judgment. The cases of OYAWOLE v. AKANDE 39 N.S.C.Q.R. Pg.213 and OKAFOR v. OKAFOR (2000) FWLR (Pt.1) Pg.25, were cited in support. It was therefore submitted that the learned trial Judge was in error when he held that acting on the statement of pw 1 would amount to speculation. He further cited the cases of OLALOMI IND. LTD. v. N.I.D.B. 39 N.S.C.Q.R. Pg.11; AKINOLA v. V.C. UNILORIN (2004) 11 NWLR (Pt.885) Pg.616; ABAISI v. EBIKEREFE, (1997) 4 NWLR (Pt.502) Pg.630 and ABAHNOMORO v. EDIEYEGBE (1999) 3 NWLR (Pt.594) Pg.170, to submit that the trial court was entitled to look at documents in its file while writing its judgment, despite the fact that the document was not tendered in evidence at the trial. Learned counsel therefore submitted that the doubt or conflict created in the statement of the PW1 as to whether there was armed robbery or not at Fair Field Guest House remained unresolved. That the result is that the Appellant was convicted of armed robbery contrary to the weight of evidence. He also referred to the case of AGBONYI v. THE STATE (1995) 1 NWLR (Pt.369) Pg.1 at 21-22. We were then urged to hold that failure to evaluate the statement of the PW1 who was the star witness occasioned a miscarriage of justice. The learned D.P.P. for the Respondent submitted that to prove armed robbery, the following ingredients must be proved beyond reasonable doubt:
a) That there was a robbery or series of robberies.
b) That the robbery or each of the robberies was an armed robbery.
c) That the accused (Appellant) was one of the persons who took part in the robbery.
The cases of BELLO v. THE STATE (2007) ALL FWLR (Pt.396) Pg. 704; BOZIN v. THE STATE (1985) 2 NWLR (Pt. 8) Pg. 465 and ISIBOR v. THE STATE (2001) FWLR (Pt. 78) Pg.1077 at 1100 were cited in support. It was then submitted that the prosecution proved all the above stated ingredients of the offence of armed robbery beyond reasonable doubt.
Learned DPP drew our attention to the evidence of the prosecution witnesses which she submits point irresistibly to the fact that an armed robbery attack actually took place at Fair Field Guest House, Egbu on the 16/12/2005 and which was inflicted on the PW1, Nnena Duru, where she was robbed of N28,000.00 under the threat of a gun. Learned counsel referred specifically to the testimony of the PW1 at pages 51-52 of the record of appeal and her extrajudicial statement at pages 9- 10 of the record of appeal to submit that the evidence of the PW1 was not impugned or controverted under cross-examination. That after a full investigation, the I.P.O. (PW4) recommended that a charge of armed robbery be preferred against the Appellant as contained also in Investigation Report at pages 19-20 of the Records. It was therefore submitted that there is no iota of doubt that armed robbery occurred in this case.
It is the further submission of learned DPP for the Respondent that the prosecution proved that the offence was committed while armed with gun and other offensive weapon, such as pestle. We were then referred to the testimony of the PW1 (Nnena Duru), who was a victim and eye witness to the offence of armed robbery at pages 51 – 52 of the Records, and her extra-judicial statement at pages 7-10 of the Records. That the PW4 also found as a fact that firearm was used in the commission of this offence, which made him to recommend a case of armed robbery. That the evidence of a gun being employed in the commission of the offence was not dislodged during cross-examination of the prosecution witnesses, especially the testimony of the PW1, who was a victim of the offence, which remained unassailable.
Learned DPP for the Respondent also submitted that, when the evidence of a party or witness is uncontroverted or discredited through cross-examination, the court is entitled to act thereon. The cases of LEADWAY ASSURANCE CO. LTD. v. ZECO (NIG.) LTD. (2004) 18 N.S.C.Q.R. (Pt.1) Pg.394; OGIDI v. STATE (2003) 9 NWLR (Pt. 824) Pg.1; NDIKE v. STATE (1994) 8 NWLR (Pt.360) Pg. 33 at 45 and EHOT v. THE STATE (1993) 4 NWLR (Pt.290) Pg. 663, were cited to further submit that the Respondent proved its case beyond reasonable doubt on the use of firearm by the Appellant in the commission of the offence through credible evidence of the PW1 and the trial court was right in convicting thereon. That the testimony of the PW1 was direct and positive as to the culpability of the Appellant in the commission of the offence while armed with a gun. The case of OKON v. STATE (2009) ALL FWLR (Pt.453) Pg.1358, was also cited in support.
Learned D.P.P. for the Respondent went on to submit that it was sufficiently proved by the prosecution that the Appellant actively participated in the commission of the offence, and in fact led the attack on the PW1, while armed with guns, and thereby dispossessed her of her money and inflicted injuries on her. That the graphic description of the sequence of the attack, leading to the actual commission of the offence cleared all doubt that the Appellant was one of those who took part in the armed robbery attack on the PW1. That the recognition of the Appellant by PW1 during the commission of the offence was instant, direct, positive and unassailable being a person known to her before the date of the incident. Learned D.P.P. referred to the testimony of the PW1 at page 51 of the Record and that of the PW2 at page 5 of the record, to submit that it was proved by evidence that the Appellant was well known to PW1, PW2 and PW3 prior to the date of the incident. The case of EMENEGOR v. STATE (2010) ALL FWLR (Pt. 511) Pg. 884 at 890, was cited to submit that the testimony of PW1 positively fixed the Appellant to the scene of crime and therefore his recognition dispelled any scintilla of doubt about his participation in the commission of the offence. We were then urged to hold that the prosecution had proved its case beyond reasonable doubt.
Replying on points of law, learned counsel for the Appellant contended that, learned counsel for the Respondent imported and/or included evidence in the summary of facts that were never led at the trial. He contended further that the mere narration of the facts and repetition of what was said in the proof of evidence does not amount to proof of the facts in issue. That from the totality of the evidence of the prosecution witnesses, it was very clear that no evidence was led to prove that there was armed robbery at Fair Field Guest House on 16/12/2005. That no member or resident of the yard heard, saw, witnessed or testified about the alleged armed robbery attack on the PW1. No Doctor’s Report or hospital bills evidencing treatment for any injury sustained was given relating to the armed robbery attack on PW1.
It is clear that from the grounds of appeal, the particulars thereof and the arguments of counsel on the issues summarized above, that the Appellant questions the evaluation of the evidence and the ascription of probative value thereto, made by the learned trial Judge. The general rule is that the evaluation of evidence and the ascription of probative value thereof reside within the province of the trial court that saw, heard and assessed the credibility of the witnesses. In other words, the duty of evaluating and ascribing probative value to all relevant oral and documentary evidence lies with the trial Judge who had the singular advantage of seeing and hearing the witnesses. An appellate court has no such advantage and therefore the evaluation of the evidence, the findings of fact and apportioning of probative value thereto by trial courts is seriously protected by appellate courts, who are generally reluctant to interfere with the primary duty of the trial court. See P.T.F. v. W.P.C. LTD. (2007) 14 NWLR (Pt.1055) Pg.478; OMAYE v. OMAGU (2008) 7 NWLR (Pt.1087) Pg.461; GAGARAU V. PASHIRI (2006) 1 NWLR (Pt.962) Pg.52I; ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) Pg.593 and OJELEYE v. REGT. T.O.I.C. & S.C.N. (2003) 15 NWLR (Pt.1111) Pg.520.

It is only where the trial court failed to evaluate or failed to properly evaluate that this court can interfere by stepping in to do what the trial court ought to have done. It is the party who complains that the trial court did not evaluate or failed to properly evaluate that has the duty to show how the judgment of the trial court would be found to be wrong if the error or omission of the trial court is corrected. In the determination of whether or not to interfere, the essential consideration would be whether the trial court made proper findings and thus reached the correct judgment on the facts before it. The factors to be considered in determining whether to interfere are:
a) Whether there is sufficient evidence to sustain the judgment; or
b) whether the trial court failed to make proper use of the opportunity it had of seeing, hearing and observing the witnesses; or
c) Whether the findings of fact by the trial court cannot be regarded as resulting from the evidence; or.
d) Whether the trial court has drawn wrong conclusion from accepted evidence or has taken erroneous view of the evidence adduced before it; or
e) whether the trial court’s findings are perverse in the sense that, they do not flow from accepted evidence or are not supported by evidence before it.
See AKINDIPE v. STATE, (2008) 15 NWLR (Pt.1111) Pg.560; MAFIMISEBI v. EHUWA (2007) 2 NWLR (Pt.1018) Pg.385; P.T.F. v. W.P.C. LTD. (supra) at Pg.498 paras. A-E and ANYAFULU v. AGAZIE (2006) 5 NWLR (Pt.973) Pg.260.
I begin a consideration of this issue with the attack by the Appellant on the failure of the leaned trial Judge to utilize the extra-judicial statements of the PW1 in order to see the contradictions and inconsistencies in the testimony of the PW1 before the court. The learned trial Judge had declined to use such extra-judicial statements, as he found that they were not evidence before him. Indeed, it is not in doubt that the PW1 had made two statements to the Police.
The PW1 had also admitted making two statements to the Police, one at the Owerri Urban Police Station and the order at the State C.I.D. Owerri. The Appellant’s counsel questioned the PW1 during cross-examination and she confirmed making those statements. However, none of those statements was either tendered or admitted in evidence.
The law is that, in a criminal trial, the only proper use to which an extra-judicial statement can be put to is for cross-examination of the witness who made the statement in order to discredit his testimony in court. Thus, in the case of ESANGBEDO v. STATE (1989) 4 NWLR (Pt.113) Pg.57 at Pg.66 para, F, the Supreme Court held per Nnaemeka-Agu, JSC, as follows:
“We cannot look at the extra-judicial statements of the PW1, PW2 PW4 and PW9, which were not tendered as exhibits during trial, because those statements cannot be legal evidence. An appellate court is bound to base its consideration of every appeal before it upon legal evidence upon which the court below acted. Even in the court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony.”
In the instant case, the extra-judicial statements of Nnena Duru who testified as the PW1 were never tendered in evidence. If the Appellant wanted to utilize those statements in his defence, he ought to have drawn the attention of the court to it by cross-examining the PW1 on the contents of those statements, vis-a-vis her testimony in court and tender same in evidence. He cannot now complain that the learned trial Judge erred in not utilizing those statements which were not evidence before the court. The fact that they were annexed to the proofs of evidence is of no moment. See Section 232 of the Evidence Act, 2011, and the cases of QUEEN v. AKANNI (1960) 1 N.S.C.C. Pg. 78 at 80; EKPENYONG v. STATE (1991) 6 NWLR (Pt. 2000) Pg. 638 at 696; UKPE v. THE STATE (2001) 18 W.R.N. Pg. 84 at 114. In the circumstances, I am of the view and do hold that the learned trial Judge was right when he declined to utilize the two extra-judicial statements of the PW1 in evaluating the evidence adduced before him.
Learned counsel for the Appellant also alluded to certain contradictions and/or inconsistencies in the testimonies of the PW1, PW2 and PW3 which he submitted affected the credibility or probative value of their evidence. Those contradictions and/or inconsistencies, relate to the circumstances or what transpired between the Appellant and the PW1 and as to who took the PW1 to the hospital. It is the law that for a contradiction or contradictory statement or evidence to destroy the credibility of a witness, it must be a material contradiction, in the sense that, it is likely to create doubt in the mind of the court, as to the truth of that which is asserted. In other words, a contradiction in the prosecution’s case is fatal only when it goes to the root or substance of the case, and not when it is of a minor nature. See OMONGA v. STATE (2006) 14 NWLR (Pt.1000) Pg. 532; MAIYAKI v. STATE (2008) 15 NWLR (Pt.1109) Pg. 173; DAGAYYA v. STATE (2006) 7 NWLR (Pt. 980) Pg. 637 and GABRIEL v. THE STATE (1989) 5 NWLR (Pt.122) Pg. 457.
In the instant case, it is my view that the nature of the contradiction and/or inconsistency as regards what transpired between the Appellant and the PW1 as recommended at page 4 paras. 3.1-3.3 and at page 5 para. 3.6 are not material to the nature of the charge against the Appellant. They do not go to the root of the offence charged, as they are not likely to have any bearing on any of the claimants of the offence of armed robbery. The nature of the contradiction which I find material to the nature of the case is as stated at pages 4-5 paragraphs 3.4 – 3.5. Therein, learned Appellant’s counsel contended that there was a conflict or contradiction between the testimonies of the PW1, PW2 and PW3 as to who took the PW1 to the hospital. After a review of the evidence adduced from the PW1, PW2 and PW3, the learned trial Judge held that:
“Counsel referred to other alleged contradictions as to who took PW1 to the hospital….. It is trite law that for a contradiction to be essential and affects the decisions of the trial court such contradiction must be material and fundamental in the determination of the guilt of the Accused. The contradiction must create doubt in the mind of the court to such a degree that the court believes that the doubt must be resolved in favour of the Accused. It is my humble view that the alleged contradictions or inconsistencies pointed out by the Defence counsel are not material to determination of whether or not there was armed robbery at the Fair Field Guest House; Egbu on 16/12/2005 and whether the Accused took part in the armed robbery.”
It is my view that the learned trial Judge cannot be correct in his assessment of the nature of the contradiction alleged. The PW1 who was the only eye witness and victim of the armed robbery alleged, gave evidence that she was seriously injured in the process of the armed robbery attack on her. She stated at page 52 lines 29-34 that:
“I was alone in the Guest House at the time of the incident. One of our family friends called Reginald came to me, saw where I was lying down and started shouting accused person jumped the fence. Reginald brought me out from where I was lying.”
It is obvious that she was seriously injured, the said Reginald whom she said is a friend, could not have abandoned her in that state. However, PW2 stated that he received a phone call that there was a robbery in the Guest House. He then stated that:
“When I reached the Guest House I saw PW1 where she lay on the ground and she fainted. I saw our neighbours and they said I should carry her to the hospital.”
See page 57 lines 24 – 27 of the record of appeal. It is interesting to note that the PW2 did not say that he met the said Reginald with the PW1 never said that the neighbours were attracted to the scene of the robbery. He said that he was the one who took PW1 to the Christiana Hospital, Egbu. It is also worthy of note that, the PW3 did not mention the person that took the PW1 to the hospital. He only stated that after the incident, the PW1 was taken to the Christiana Hospital, Egbu. These contradictions in my view are material to the issue whether in fact there was an armed robbery attack on the PW1 which led to her being hospitalized due to injuries she sustained. The contradiction is therefore material as to whether the PW1 was taken to any hospital.
The materiality of the above contradiction is made more relevant when it is considered that, there was no scintilla of evidence to show that the PW1 was indeed hospitalized. There was no medical report or some other evidence from the Christiana Hospital where the witnesses said she was hospitalized. Neither Reginald whom the PW1 said took her to the hospital nor any of the neighbours whom the PW2 said advised him to take the PW1 to the hospital made any statement to the Police nor testified in court. The PW4 who said he investigated the case and confirmed that there was indeed a robbery at the Fair Field Guest Hosue did not say that he investigated to find out whether the PW1 was indeed admitted at the Christian Hospital and the Doctor or Doctors who treated her never testified of that fact. It is also surprising that the Police at the Owerri Urban Police Station where the PW2 and PW3 said reported the mater, never testified or made any entry of the said incident. There is therefore a serious doubt as to whether the PW1 sustained any injury resulting from any robbery attack on her on the 16/12/2005. This doubt obviously has to be resolved in favour of the Appellant.
The Appellant also complains or questions whether the learned trial Judge was right in attaching weight to Exhibit P2, upon which he proceeded to find him guilty. The said Exhibit P2 was admitted during cross-examination of the Appellant. Before the said Exhibit P2 was admitted, the Appellant had denied that he made a statement at the Owerri Urban Police Station in respect of the fight he had with the PW2. The question put to him in cross-examination was to show that he made a statement at the Owerri Urban Police Station when he was arrested on the 06/3/2006, of which he denied. See page 70 lines 5 -7 the record of appeal. This is what transpired.
PUT: You made statement to Owerri Urban Police Statement on the day you were arrested 6/3/2006.
ANS: It is not true.
Though counsel to the Appellant objected to the admissibility of the statement, he later withdrew same, and the statement was therefore admitted in evidence as Exhibit P2. Exhibit P2 is said to be a Statement the Appellant made at the Owerri Urban Police Station. In the evaluation of the evidence, the learned trial Judge held that:
“Accused as D.W.1 admitted that he personally wrote Exhibit “P1” – his statement at the State C.I.D. He denied writing or signing Exhibit “P2”. I carefully examined Exhibit “P1” and Exhibit “P2”, the writing and signature on both are similar. I therefore making a finding (sic) that the accused wrote and signed Exhibit “P2″ and I so hold.
It is well settled that the retraction notwithstanding, the statement was bound to be considered along with the other evidence by the trial Judge who at the end would decide whether or not the Appellant did make the statement as alleged…”
Now, the learned trial Judge rightly found that Exhibit “P2” is not a confessional statement. The dispute is that the Appellant denied making the statement. He is therefore not contesting its admissibility but its probative value.
I need not reiterate that in law, there is a distinction between admissibility and the weight to attach to a document. See LAWAL V. U.T.C. (NIG.) PLC. (2005) 13 NWLR (Pt.943) Pg.601 and OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (2005) 8 NWLR (Pt.928) Pg.547. Thus, a document may be admitted in evidence but it has to be tested for credibility, so as to determine the weight and cogency to attack to it. In attaching weight to it, the entire circumstances to the making of the document have to be considered.
In the instant case, the learned trial Judge held that upon his comparing the writing and signature on Exhs. P1 and P2, it was his view that Exhibit P2 was made by the Appellant. Indeed, Section 101(1) of the Evidence Act, 2011 provides that, in order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to proved although that signature, writing seal or finger impression has not been produced or proved for any other purpose. The trial court was therefore well within its powers when it compared the disputed signature on Exhibit “P2” with that on Exh. “P1” which has been proved and admitted in evidence. However, the Supreme Court in the case of NDOMA-EGBA v. A.C.B. PLC. (2005) 14 NWLR (Pt. 944) Pg. 79 at 102 paras D-F, held that, the burden was on a Plaintiff who alleges that it was the Defendant who signed a document that had the burden of establishing that it was the Defendant and not anyone else who signed the document. In the instant case, the Appellant had denied writing or signing Exh. “P2”. The Police Officer before whom the document was made is not known. The prosecution only alleged that it was made at the Owerri Urban Police Station on the 06/3/2006, the day the Appellant was arrested. The PW4, who said that he investigated the case, is an officer of the State C.I.D. and not the Owerri Urban Police Station. He told the court that it was on the 07/3/2006 that he was assigned to investigate a petition written by the PW1 tagged “Armed Robbery” against the Appellant. That the case-file was transferred to him from Owerri Urban Police Station together with the accused. He indeed stated clearly at page 63 lines 11 – 16 that:
“I am not the Investigating Police Officer at the Area Command. It is a transferred case. When a case is reported, it is normally entered in crime diary. Original case-file and Accused were transferred to the Crack Squad no exhibits were transferred. I did not know the Investigating Police Officer that investigated the matter.”
The PW4 stated clearly that no exhibit was transferred to him. Certainly, the statement of a suspect made to the Police is classified as an exhibit. Thus if one existed or was made by the Appellant at the Owerri Urban Police Station, it would have been transferred along with the case-file, and the PW4 would have seen it. Perhaps such statement did not exist in the case-file transferred to the State C.I.D. that is why no effort was made to tender same through the PW4, nor any effort made to call the I.P.O. at Owerri Urban Police Station to tender same. Since it was not tendered through the prosecution witnesses, the Appellant was over-reached as he had no opportunity to cross-examine on it, having denied that he made such statement. I make bold to say that the Appellant was rather ambushed with the document admitted as Exhibit “P2”.
Despite this glaring anomaly, the learned trial Judge proceeded to compare the signature thereon with Exhibit “P1” tendered by the prosecution and not disputed, to hold that the Appellant indeed made Exh. “P2”. The Supreme Court held in the case of NDOMA-EGBAS v. A.C.B. PLC (supra) at pp.106-107 paras. D-A, that, where a trial court compares a signature in dispute with an undisputed signature, and observes some similarities or dissimilarities, it should read its observations to the parties in open court and call their reaction on such observations before making a finding on the issue. The Supreme Court applied the decision in the case of DURIMINIYA v. C.O.P. (1961) N.N.L.R Pg.70, and proceeded to discountenance findings of the trial court upon a comparison of the signatures in the exhibits admitted in that case. In the instant case, the learned trial Judge made observations upon comparison of the signatures on exhibits P1 and P2, and made a finding that the Appellant was the maker of Exhibit P2, without calling on the parties to react to the observations so made. I therefore hold that the procedure adopted by the learned trial Judge was wrong, and it occasioned a miscarriage of justice to the Appellant. The result is that Exhibit P2, though admitted in evidence’ remains a suspicious document, which should be relied upon with caution.
On the issue of whether the learned trial Judge was right in relying on the petition tagged “Armed Robbery” in convicting the Appellant, while rejecting the complaint of Assault made at THE Owerri Urban Police Station, learned counsel for the Appellant contended that, the alleged robbery took place on the 16/12/2005. That there was no evidence that the prosecution witnesses reported the Appellant whom they knew very well, to have led others to rob the PW1 at the Fair Field Guest House. That there was no evidence showing that a report of the robbery was made in respect of the robbery before 06/3/2006, and none of the witness mentioned the name of the Appellant to the Police as the person who attacked PW1 before the 06/3/2006. That the Appellant stated that he fought PW2 at Relief Market junction on 06/3/2006, about four months after 16/12/2005, wherein the PW2 sustained injury and both of them were taken to the Owerri Urban Police Station. That this fact was admitted by PW2. It was also contended by the Appellant that, while he was being detained for the alleged assault at the Owerri Urban Police Station, the I.P.O., one Ifeanyi “hands off” the investigation because there were plans to change the case of assault to that of armed robbery, as a result of which the matter was transferred to the State C.I.D., Owerri where he was confronted with a petition by the PW1 and PW2 alleging that he robbed the PW1 on the 16/12/2005. That the PW2 admitted that he wrote the petition on the 06/3/2006, the day he fought with the Appellant which is about four months after the robbery alleged. The PW4 also said that he investigated a case of armed robbery based on the petition tagged “Armed Robbery” which was referred to him on the 07/3/2006.
Learned Appellant’s counsel went on to submit that the PW1, PW2 and PW3 who are the main prosecution witnesses and who knew the Appellant very well before the alleged robbery never mentioned his name to the Police as a person who had led unknown persons to rob the PW1 on 16/12/2005. That the petition was made on 06/3/2006 while the robbery took place on the 16/12/2005. It was then submitted that the petition was an after-thought and a revenge attack perfected by the PW1 and PW2 against the Appellant. It was further submitted that, where a witness failed to mention the name of an accused person he says he knows before the commission of the crime alleged to the police at the earliest opportunity, it would detract from whatever credibility the trial court may wish to ascribe to his evidence. The case of ABDULLAHI v. STATE (2003) 5-8 S.C. (Pt.1) Pg.10 was cited in supported. We were then urged to hold that the petition alleging armed robbery against the Appellant was a hoax and a frame-up by PW1 and PW2.
Learned D.P.P. for the Respondent submitted that the argument of the Appellant is misconceived as the conviction of the Appellant was not based on the said petition. That nowhere in the entire judgment was the said petition mentioned as it was not tendered in evidence and therefore did not form part of the proceedings or judgment of the trial court. We were then urged to disregard the arguments of counsel for the Appellant on the issue, as there was no correlation between the said petition and the eventual out-come of the case. We were then directed to the extra-judicial statements and evidence of the PW1, wherein she mentioned the Appellant as one of the persons who robbed her at gun point.
There is no argument in the Reply of the Appellant to the Respondent’s argument that is if use to the resolution of this issue.
The issue for determination here is whether, if there was any robbery attack on the PW1 at Fair Field Guest House on 16/12/2005, the Appellant was the culprit or one of the culprits to the offence alleged. Though there is evidence that the PW1, PW2 and PW3 made statements to the Police, such statements are not in evidence, as they were not tendered. The only evidence from those witnesses are their testimonies before the court at the trial. It is also not disputed that the three witnesses stated that they knew the Appellant before or prior to the alleged robbery attack on the PW1. The question to be answered is whether the testimony of those witnesses positively linked the Appellant to the alleged offence. The PW1 stated that she was alone at the Guest House when she was robbed. Both PW2 and PW3 stated that they did not witness the robbery incident as they were not in the Guest House at the time of the incident. That being so, the only available evidence on the issue of any probative value is that of the PW1. In her testimony before the court she narrated how the Appellant and other persons whom she does not know and could not identify, attacked her and stole N28,000.00 in her room. She stated also under cross-examination that apart from herself, no other person witnessed the robbery incident. She also stated at Page 51 lines 7-8 that:
“I know the accused very well, he normally visited our Manager.”
Her testimony is therefore that of the victim of the alleged offence who knew her assailant very well before the incident.
The law is that, where the identity of an accused person is in issue, a trial court is enjoined to warn itself and meticulously examine the evidence adduced to see whether there are weaknesses capable of endangering or rendering worthless any allegation that the accused was sufficiently identified or recognized by the witness or witnesses. Even where the evidence of identity is that of recognition, a trial court should still be circumspect in weighing and examining the evidence led at the trial. The trial court should therefore warn itself on the need for caution and to carefully weigh the evidence alongside other evidence adduced at the trial before convicting the accused on such evidence. This is moreso when the offence is one like armed robbery which carries the ultimate penalty, which is death, and the evidence available is that of a single witness, as in the instant case. See ARCHIBONG v. STATE (2006) 5 S.C. Pg. 1 at 8; TANKO v. STATE (2008) 16 NWLR (Pt.1114) Pg.591 at 640; AGBI v. OGBEH (2005) 8 NWLR (Pt.926) Pg. 40 at 119 – 120 paras H – C and NDIDI v. STATE (2007) 13 NWLR (Pt.1052) Pg. 653. The question whether or not an accused person was properly identified or not is a question of fact to be resolved by the trial court.

It is also the law that where the evidence of identify of an accused person to the commission of a crime is that of recognition, the witness must mention the name of the person he claims he knows to the police at the earliest opportunity. In other words, where an eye witness fails to mention the name of a person or persons whom he knows and was seen by him committing the offence, such evidence of identification which he gives at a later date should be treated with great caution. This is to avoid a situation where an innocent person may, for one reason or another, be roped in the commission of an offence of which he has no knowledge. See BOZIN v. STATE (1985) 7 S.C. Pg. 450 at 469; WAKALA v. STATE (1991) 8 NWLR (Pt.211) Pg. 552 at 566 – 567; MORKA v. STATE (1998) 2 NWLR (Pt.537) Pg. 294 at 302. Thus, where an eye witness omits or fails to mention at the earliest opportunity the name of the person he claims he saw committing an offence, a trial court must be careful in accepting and relying on his evidence given at a rater date implicating the accused, unless he is able to proffer satisfactory explanation for his failure or omission to so mention the name before. See IDAHOSA v. THE QUEEN (1965) N.M.L.R. Pg.85 at 88 and TSAKU & 7 ORS. V. THE STATE (1986) 1 NWLR (Pt.17) Pg.516 at 530.
In the instant case, the trial court in determining this issue held at page 125 lines 7 – 29 of the record of appeal as follows:
“Defence counsel questioned why the complainants had to wait for 4 months without petitioning the Commissioner of Police of report the incident.
I hold that the submission is based on misconception of the evidence before the court. PW2 said when he got the phone call about the robbery he took a motor-cyclist back to Fair Field Guest House. On reaching there he saw PW1 lying on the ground. He took her to Christiana Hospital Egbu. They commenced treatment on her and he went to the Area Command Police Station and lodged a complaint. PW3 said he went to the Timber shade at Wetheral Road, Owerri when his brother phoned that armed robbery were at the Fair Filed Guest House, he went straight to the Area Command Fire Service Police Stations and lodged a complaint. None of PW2 and PW3 was challenged in cross-examination. Their evidence on this issue was not controverted. Under cross-examination PW1 testified that they reported to the Owerri Urban Police Station who demanded money in order to investigate the case. The Manager and other staff said they would get the robbers themselves. She denied that it was the petition to the police by Chinonso that gave rise to the case.”
It is not in doubt that the PW2 and PW3, both claimed to have reported the matter to the Area Command Police, the very day the robbery was said to have been committed. By their testimonies, it is obvious that both of them reported as different times, that is, if they in fact made a report. The PW3 stated that after receiving the phone call, he did not come to the Guest House to find out what was happening, but went straight to report to the Police. He could not have mentioned the name of the Appellant to the Police, as he did not visit the scene before reporting to the Police. The PW2 did not say throughout his testimony that he was told by PW1 that it was the Appellant that robbed her. He did not say he mentioned the name of the Appellant to the Police either. The PW1 who was the only victim of the alleged robbery and therefore the only eye witness to the crime alleged stated that the matter was reported to the Owerri Urban Police Station. She could not however know when the matter was reported to the Police. Though she stated that “we reported at the Owerri Urban Police Station”, she did not say, with whom she reported. She could not have been in company of either PW2 or PW3 when they claimed to have reported to the Police, because it is obvious from the evidence on record that she was by then injured and at the hospital. Neither by PW2 nor the PW3 said that she was with him when the matter was reported.
From the above analysis, there is no evidence that the PW1 personally reported the matter to the Police. There is also no evidence that she made any statement to the Police wherein she named the Appellant as the person who robbed her on the 16/12/2005. What is also intriguing to me in this case is that there was no scintilla of evidence from the Area Command or Owerri Urban Police Station, where the matter was allegedly reported on the 16/12/2005. It does not accord with common sense that a case of armed robbery would be reported to the Police, in which the victim was hospitalized, and the name of the robber disclosed to them, yet they would failed to act. The PW1 alleged that when the matter was reported to the police at the Owerri Police Station, they demanded for money before they could investigate. If her allegation is true, why did she not petition the Commissioner of Police as she did on the 06/3/2006. The only logical conclusion in my view is that, no report of armed robbery was made to the Owerri Urban Police Station or any other Police Station on the 16/12/2005, by the PW1, PW2 or PW3. At least the I.P.O. (P.W.4) stated that, when a case is reported, it is normally entered in a Crime Diary. He stated that the original case file was transferred to him along with the Appellant, from the Owerri Urban Police Station, but he did not say that the case file contained any entry of the report made on the issue on the 16/12/2005. In any case, he stated that he conducted his Investigation based on the petition written by P.W.1 tagged “Armed Robbery” dated the 06/3/2006. It is clear therefore that the evidence on record does not disclose beyond reasonable doubt that the PW1, PW2 or PW3 reported the matter to the police on the 16/12/2005. The learned trial judge was therefore in error when he believed the ipse dixit of PW1, PW2 and PW3 that they reported the armed robbery incident against the Appellant on the 16/12/2005. The learned trial judge may not have utilized the petition tagged “Armed Robbery” in the resolution of the issue, but his findings and conclusion that the PW1, PW2 and PW3 proved that they reported the matter to the police is not supported by the evidence.
From the issues resolved above, it is obvious that the prosecution failed to proof from the evidence on record that there was an armed robbery committed against the PW1 on the 16/12/2005. In other words, the prosecution failed to discharge the burden on them to establish beyond reasonable doubt the fact of the armed robbery alleged. They also failed to establish that the Appellant was linked with the commission of robbery against the PW1 at Fair Field Guest House, Egbu on the 16/12/2005. I hold that if there was such robbery it would have been reported. There was none and none was reported.
The above finding is made more glaring in view of the defence raised by the Appellant. The Appellant had made a statement (Exhibit P1) at the State C.I.D. on the 14/3/2006 wherein he stated that:
“On the 16th day of December, 2005 I was in Lagos with my uncle Mr. Victor Nwosu. My uncle Mr. Victor Nwosu is a staff of NTA Nigerian Television Authority Ikeja in Lagos State. My uncle can testify. I returned from Lagos 10th day of February 2006. I did not gang up with any robber to robe Fair Field Guest Isiuzo Egbu. I know Fairfield Guest House through the manager of the Fairfield Guest House, Mr. Chinedu. He is my friend.”
It is clear that by the above statement, the Appellant had raised the defence of alibi. However, the learned trial judge rejected the plea of alibi raised in the above statement, when he held thereon, in his judgment at page 137 lines 26 – 30 of the record as follows:-
“For all I have said above and in the light of the authorities cited I hold that failure by the police to investigate the alibi set up by the accused is not fatal to the prosecution’s case, the defence of alibi is not available to the accused. See BASIHAYA v. THE STATE (supra).”
The above finding and conclusion of the learned trial Judge has been challenged by the Appellant in this appeal, and argued as his issue number two.
Arguing therein, learned counsel for the Appellant submitted that, when the Appellant was confronted with the petition tagged “Armed Robbery” he denied it and told the P.W.4 that he was staying with his uncle, one Victor Nwosu, who works with NTA, Ikeja-Lagos. That this piece of evidence was never controverted by the prosecution. That the I.P.O. (P.W.4) admitted under cross-examination that he did not investigate the alibi put by the Appellant. That the P.W.2, Celestine Chukwu testified that the Appellant was in Lagos with one of his uncles on the date of the alleged incident. It was then submitted by learned Appellant’s counsel that, failure by the I.P.O. to investigate the reliability of the alibi has created a reasonable doubt in the prosecution’s case.
The case of ONAFOWOKAN v. THE STATE (1987) 7 S.C., was cited in support.
It was further submitted by learned counsel for the Appellant that, the Appellant promptly denied the allegation of armed robbery alleged against him, when he was confronted with the petition and also the particulars of his where about on the 16/12/2005, but the prosecution failed to investigate. He cited the case of ALMU v. STATE 38 N.C.Q.R. Pg. 418 to submit that, the failure of the prosecution to investigate in fatal to the case of the prosecution. We were then urged to hold that the plea of alibi avails the Appellant and that failure of the police to investigate entitles him to a discharge and acquitted.
Learned D.P.P. for the Respondent submitted that, the alibi of the Appellant was not raised in his extra-judicial statement (Exh. P2) dated 6/3/2006, which was the very day he was arrested. That in the said statement he stated that he was living at Umuofor, Egbu with one of his uncles Celestine Chukwu, while his mother was living with her younger brother called, Victor Nwosu along Lagos Street, Owerri. She contended that the said Victor Nwosu is the person the Appellant stated he was living with in Lagos. I wish to point out that, the prosecution did not question the Appellant on whether the said Victor Nwosu is the same person he said he was living with in Lagos.
Learned D.P.P. went on to submit that Celestine Chukwu who testified for the Appellant was in Lagos in 2005, with Victor Nwosu, but did not allude to the alibi. She then submitted that, though the PW4, Inspector James Eteng stated that he did not investigate the alibi raised by the Appellant, the defence of alibi fell in the face of the credible and over-whelming evidence of P.W.1, who is an eye witness and a victim of the robbery incident, which positively fixed him to the scene of crime. That in Exh. P2, which is the first extra-judicial statement of the Appellant made on the very day he was arrested, he did not state therein that he was in Lagos on the day of the incident.
It was further contended for the Respondent that, even in the face of the second extra-judicial statement made on the 14/03/2006, and admitted in evidence as Exh. P1, and which was made nine (days) after his arrest, and in which he raised the plea of alibi, he did not supply the actual address of his uncle in Lagos nor did he state what he was doing in Lagos. That the police were therefore not expected to go on a wild-goose chase when the alibi raised did not contain detailed particulars. That in any case, Exhibits P1 and P2 are contradictory and therefore, the defence of alibi raised in Exh. P2 was an after-thought to escape justice.
Learned D.P.P. for the Respondent further cited the cases of EBENECHI v. THE STATE (2009) ALL FWLR (Pt. 486) Pg.1815 and CHIA v. THE STATE (1996) 6 NWLR (Pt.455) Pg. 465 to also submit that the Appellant did not raise the plea of alibi timeously and at the earliest opportunity so as to enable the police investigate. That he only raise the alibi on the 14/3/2006, but did not give detailed particulars of the alibi. The case of ISONG AKPAN UDOEBERE & 2 ORS. v. THE STATE (2001) 5 M.J.S.C. Pg. 146 at 155 – 156 was cited to further submit that, merely stating where he was on he date of the incident without more is not enough.
It is the further submission of learned D.P.P., that where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to a conviction. That there was cogent evidence from P.W.1, who was an eye witness to the armed robbery, which sufficiently fixed the Appellant to the scene of crime at the material time. That in the circumstances, the evidence of P.W.1 demolished the alibi put up by the Appellant and thus effectively rendered the plea of alibi ineffective. The case of NJOVENS v. THE STATE (1973) 5 S.C. Pg. 17; BASHIYA v. THE STATE (1998) 4 S.C.J Pg. 8; EBRI v. THE STATE (2004) ALL FWLR (Pt.216) Pg. 420; AIGUORECHIAN v. THE STATE (2004) ALL FWLR (Pt.195) Pg.716 and ARCHIBONG v. THE STATE (2006) ALL FWLR (Pt.323) Pg. 1747, were cited in support. Learned D.P.P. also cited the cases of NTAN & ANRO v. THE STATE (1968) N.M.L.R. Pg. 87 and CHUNYON v. THE STATE (1996) 3 NWLR (Pt. 436) Pg. 264, to submit that the failure of the Appellant to call evidence in support of his plea of alibi proved that the claim of alibi was merely created as a leeway of the Appellant’s escape. We were then urged to affirm the findings of the lower court on the issue of alibi and to resolve the issue against the Appellant.
Now, alibi is a radical defence, which simply means that the accused was at a place other than the place of the offence alleged and so could not possibly be at the scene of crime to partake in it. See OZAKI v. THE STATE (1990) 1 NWLR (Pt. 124) Pg. 92; AREMU v. THE STATE (1991) 7 NWLR (Pt.201) Pg.1 and NWABUEZE v. THE STATE (1988) 4 NWLR (Pt.86) Pg.16. Since the facts constituting the alibi are within the peculiar knowledge of the accused, and such witnesses as may be available, the onus is on the appellant to disclose at the earliest opportunity such facts with necessary particulars, so as to enable the police to investigate the authenticity of the alibi raised. It is not for the accused to prove his alibi. His duty is to bring forward the particulars, while the duty of the prosecution is to lead credible evidence to disprove same. See YANOR v. THE STATE (1965) NWLR Pg.337; IKONO & ANOR. v. THE STATE (1973) 5 S.C. Pg. 231.
It is therefore not enough for an accused person to raise the defence of alibi which is at large or without particulars. He must supply adequate particulars of his where about at the time the offence was alleged to have been committed, so as to assist the police to make meaningful investigation of the alibi. Thus, where an accused alleged, as in the instant case, that he was at a particular locality or with a particular person, he must supply information as to the specify place, home and/or address of the person, and the relevant period he was away from the scene of crime. See OKOSI v. THE STATE (1989) 1 NWLR (Pt.100) Pg. 642; GACHI v. THE STATE (1965) NMLR Pg. 333; OBIODE v. THE STATE (1970) 1 ALL NLR Pg. 35.
Where an accused person fails to supply the particulars of alibi, the police are not expected to go on a wild-goose chase or embark on a journey to nowhere. Once the alibi is sufficient and adequately raised, and the police fail to investigate, it may prove fatal to the prosecution’s case, as it would create a doubt in the case as presented by the prosecution. See AIGUOBARUEGHIAN & ANOR. v. THE STATE 17 N.S.C.Q.R. Pg. 442 AT 467 – 468; OKOSI v. STATE (supra) at Pg. 642 and ADEDEJI v. THE STATE (1971) 1 ALL N.L.R. Pg. 75. However, where the prosecution is able to lead or adduce sufficient and accepted evidence which fixes the accused person at the scene of crime at the material time, his alibi would have been effectively and logically demolished. See ARCHIBONG v. THE STATE (2006) 14 NWLR (Pt. 1000) Pg.349 at 396 – 397; DAGAYYA v. THE STATE 25 N.S.C.Q.R. Pg. 775; DOGO v. THE STATE (2001) 1 S.C. (Pt. II) Pg. 30 and EYISI v. THE STATE (2000) 12 S.C. Pg. 24.
In the instant case, two extra-judicial statement of the Appellant were admitted in evidence. They are Exhs. P1 and P2, Exh. P1 was made on the 14/3/2006 at the State C.I.D, Owerri, while Exh. P2 was said to have made at Owerri Urban Police Station, on the 6/3/2006, which is the date the Appellant was arrested. However, the Appellant denied making the said Exh. P2, and after a careful consideration of the facts and circumstances of this case, it was my finding that the said Exhibit, though rightly admitted in evidence, it ought not be accorded any evidential value, as there is no conclusive prove that the said statement was in fact made by statement was in fact made by the Appellant. In other words, it is doubtful whether Exh.P2 was written or made by the Appellant. He is therefore entitled in the benefit of the doubt. The only relevant extra-judicial statement relevant to the determination of this issue is therefore Exh. P1. It is in that statement that the Appellant raised his plea of alibi. He made Exh. P1 when he was confronted at the State C.I.D. for the first time the allegation of robbery.
Though I had earlier reproduced same, I again endeavour to reproduce the pertinent portion of that statement on the issue of alibi:
“On the 16th day of December, 2005 I was in Lagos with my uncle Mr. Victor Nwosu. My uncle Victor Nwosu is a staff of NTA Nigeria Television Authority, Ikeja in Lagos State. My uncle can testify. I returned from Lagos 10th day of February, 2006.”
The PW4 stated that when the Appellant was brought to him from Owerri Urban Police Station, he cautioned the Appellant who volunteered a statement in English. He did not say when the Appellant made the statement. He did not also say that any other statement of the Appellant was recorded by him or another person. The only conclusion I make thereby is that the statement mentioned by PW4 is Exh. P1 dated the 14/3/2006. That was the earliest statement the Appellant made when confronted in the State C.I.D. with the petition tagged “Armed Robbery”. Therein the Appellant stated that on the 16/12/2005, he was living with his uncle, whose name he gave as Mr. Victor Nwosu, a staff of NTA, Ikeja, Lagos State and only returned to Owerri on the 10/2/2006. I am of the view that the particulars supplied by the Appellant in Exh. P2 are sufficient to enable the Police effectively investigate. However, the PW4 admitted that he did not investigate the alibi raised by the Appellant.
Now, my findings in this case have shown that there was no sufficient and positive evidence leading to the inevitable conclusion that the Appellant was fixed to the scene of the crime alleged. In the absence of such evidence, the alibi raised by the Appellant which was never investigated has further weakened the case of the prosecution against the Appellant. It is the law that the burden is always on the prosecution to proof the guilt of the accused beyond reasonable doubt. That burden does not shift, especially in view of eth presumption of innocence which enures in favour of the accused by virtue of section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. I therefore hold that there is no sufficient evidence on record proving beyond reasonable doubt that the Appellant committed the offence of armed robbery alleged against him. The learned trial Judge was in that respect wrong to have convicted him for armed robbery, on the evidence adduced before him as evident on record.
On the whole therefore, it is my view and I do hold that this appeal has merit. It is accordingly allowed. Consequently, I set aside the conviction and sentence passed on the Appellant, in the judgment of the trail court in Charges No: HOW/23C/2008, delivered on the 19/12/2008. The Appellant is discharged and acquitted.

UWANI MUSA ABBA AJI, J.C.A.: I read in advance the lead judgment of my learned brother H. M. Tsammani, JCA just delivered.
I entirely agree with the reasoning and conclusion reached therein that the appeal has merit which reasoning and conclusion I adopt as mine. I also allow the appeal, set aside the conviction and sentence of the Appellant and discharge and acquitted the Appellant.

MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother HARUNA M. TSAMMANI, JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.

Appearances

A.A. Onyeji; Esq.
E.U. Okafor Mrs. For Appellant

AND

G.C. Iheanacho; Esq. (Senior State Counsel, Min. of Justice, Imo State For Respondent