OLUSINA AJAYI & ANOR V. THE STATE
(2011)LCN/4428(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2011
CA/I/103/08
RATIO
NUMBER OF WITNESS: WHETHER THE PROSECUTION HAS ABSOLUTE DISCRETION TO DETERMINE WHICH WITNESSES TO CALL TO PROVE ITS CASE
…it is at the discretion of the prosecution to decide who to field as a witness and the number of witnesses to be fielded. It is never the duty of the defence. In IJIFOR V. THE STATE (2006) 6 NSCQR (PART 1) 209 at 237; ACHIKE JSC put it clearly thus, “The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case, but under no circumstances will the accused person dictate to the prosecution regarding the persons they field as witnesses”. The same principle applies on who to field and not only on number of witnesses to field. It is not therefore open to the Appellants to say that the prosecution should have called as witnesses the wives of PW 3 and PW 4 to give evidence at the trial in the court below. In N. M. ALI & ANOR. V. THE STATE (1988) 1 NWLR (PART 68) 1, the Supreme Court held that although the burden is on the prosecution in a criminal case to prove its case beyond reasonable doubt, it has absolute discretion to determine which witnesses to call to prove its case. Where there are several witnesses to an event, the law does not compel the prosecution to call all of them as witnesses. Rather the prosecution is required to call only those it considers material in order to establish its case. See also ADAJE V. THE STATE (1979) 6 – 9 SC 18; OKONOFUA V. THE STATE (1981) 6 – 7 SC 1. PER STANLEY SHENKO ALAGOA, J.C.A.
PROOF OF ARMED ROBBERY: WHAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT TO SUCCEED IN PROOF OF THE OFFENCE OF ARMED ROBBERY
In SAMUEL BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465 at 467; (1985) 16 NSCC (PART 11) 1087; (1985) 7 SC 450, the Supreme Court held that for the prosecution to succeed in proof of the offence of armed robbery the prosecution must prove beyond reasonable doubt the following – (i) That there was a robbery or series of robberies; (ii) That each robbery was an armed robbery; (iii) That the accused was one of those that took part in the robbery or robberies. See also OKOSI V. A. G. BENDEL STATE (1989) 1 NWLR (PART 100) 642; (1989) 1 SCNJ 29; ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511 at 523. PER STANLEY SHENKO ALAGOA, J.C.A.
CONSPIRACY: MEANING OF THE OFFENCE OF “CONSPIRACY”
Conspiracy involves a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means and conviction for conspiracy is based usually by circumstantial evidence. Blacks Law Dictionary 8th Edition at page 329 defines conspiracy as “An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective” see UPAHAR V. THE STATE (2003) 6 NWLR (PART 816) 230; ODUNEYE V. THE STATE (2001) 2 NWLR (PART 697 311 at 324; PATRICK NTOVENS V. THE STATE (1973) 5 SC 17… PER STANLEY SHENKO ALAGOA, J.C.A.
WITNESS: WHETHER IN AN OFFENCE WHERE CORROBORATION IS STATUTORILY REQUIRED, ONE WITNESS OF TRUTH CAN NOT SUSTAIN THE CONVICTION OF AN ACCUSED PERSON
The prosecution is not obliged to call a host of witnesses to prove its case. Only material witnesses disposed to rendering truthful evidence are expected to be called by the prosecution-see Twumasi v. Ankrah (1955) 14 W.A.C.A. 673 at 675 thus: “The first submission on behalf of the appellant was that the trial Judge erred in not directing the prosecution to call two eye-witnesses in the room”. This court held in Regina v. Kwabena Yeboah (W.A.C.A., 2nd April, 1954) that a prosecutor is relieved from calling a witness present at the commission of a crime if he has a reasonable belief that the witness will not speak the truth.” See also Akpa v. The State (2008) 4 SCNJ 250 at 265: “The prosecution has no duty to call a village, community or barrage of witnesses before the court can convict an accused person. In law, one witness of truth can result in the conviction of an accused person unless in an offence where corroboration is statutorily required.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. OLUSINA AJAYI
2. KAREEM OLATINWO Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Ibadan, Oyo State of Nigeria, the 1st and 2nd Appellants along with two other accused persons were tried, convicted and sentenced to death on a charge of Conspiracy to commit Armed Robbery. The accused persons were charged with the following offences:-
COUNT I: STATEMENT OF OFFENCE:
Conspiracy to commit felony to wit; armed robbery contrary to section 5(b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria, 1990.
PARTICULARS OF OFFENCE
(1) A. Kareem Olatinwo ‘m’ (2) Olusina Ajayi ‘m’ (3) Olusola Oyeleye ‘m’ (4) Ganiyu Busari ‘m’ on or about the 19th day of May, 1999 at Oke-Omi Olodo area, Ibadan in the Ibadan Judicial Division conspired together to rob the Residents of Oke-Omi Olodo, area, Ibadan.
COUNT II: STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
(1) A. Kareem Olatinwo ‘m’ (2) Olusina Ajayi (3) Olusota Oyeleye ‘m’ (4) Ganiyu Busari ‘m’ on or about the 19th day of May, 1999 at Oke-Omi Olodo area, Ibadan in the Ibadan Judicial Division whilst armed with Firearms and offensive weapons to wit; guns, cutlasses and other offensive weapons robbed Olusegun Adetona of Clothes valued at N7, 000.00 and N1, 800 cash.
COUNT III: – STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
(1) A. Kareem Olatinwo ‘m’ (2) Olusina Ajayi ‘m’ (3) Olusola Oyeleye ‘m'(4) Ganiyu Busari ‘m’ on or about the 19th day of May, 1999 at Oke-Omi Olodo area, Ibadan in the Ibadan Judicial Division while armed with Firearms and offensive weapons to wit; guns, cutlasses and other offensive weapons robbed Suwara Yusuf of the sum of N440.00 (Four Hundred and Forty Naira) and clothes.
COUNT IV: STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.39B Vol. XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
(1) A. Kareem Olatinwo ‘m’ (2) Olusina Ajayi ‘m’ (3) Olusola Oyeleye ‘m’ (4) Ganiyu Busari ‘m’ on or about the 19th day of May, 1999 at Oke-Omi Olodo area, Ibadan in the Ibadan Judicial Division whilst armed with Firearms and offensive weapons to wit; guns, cutlasses and other offensive weapons robbed Kamoru Atanda of the sum of N500.00 (Five Hundred Naira).
COUNT V: STATEMENT OF OFFENCE
Armed Robbery contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Vol. XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
(1) A. Kareem Olatinwo ‘m’ (2) Olusina Ajayi ‘m’ (3) Olusola Oyeleye ‘m’ (4) Ganiyu Busari ‘m’ on or about the 19th day of May, 1999 at Oke-Omi Olodo area, Ibadan in the Ibadan Judicial Division whilst armed with Firearms and offensive weapons to wit; guns, cutlasses and other offensive weapons robbed Alidu Fagbure of N4, 800.00 (Four Thousand, Eight Hundred Naira) each and two clothes.
They all pleaded not guilty to the offences and the case proceeded to trial at the High Court below. Witnesses were called by both sides, addresses of Counsel taken and in a considered judgment delivered by Ige J., on the 28th June, 2002 all four accused persons were found guilty and condemned to death by hanging.
1st and 2nd accused persons have appealed as 1st and 2nd Appellants against their conviction and sentence. The case for the prosecution with special emphasis on the Appellants is that in the night of the 18th/19th May, 1999 some armed robbers numbering about five, the 5th a female by name Bukola Ajayi having absconded, raided the houses of PW1-PW4 carting away valuable property and cash while being armed with dangerous weapons to wit; gun, cutlass and hammer. PW1-PW4 identified the Appellants as well as the other convicted robbers’ PW5 a night guard also identified the Appellants and their other comrades. This robbery incident was reported to and investigated by the police and the Appellants and their comrades in arms charged to court. The Appellants pleaded alibi, contending that they were not at the scene of the robbery and that they themselves were burgled on the day of the robbery incident. The Appellants initially appeared on two grounds of appeal each of which can be found on pages 135-136 of the Record of Appeal as follows:
1. 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 forwarded on receipt of the record proceedings.
The 1st and 2nd Appellants each brought applications dated the 11th December, 2008 and filed on the 15th December, 2008 to amend their Notices of Appeal and to deem the Notices of Appeal already filed as properly filed and served. The applications were heard and granted by this Court on the 7th April, 2009 and amended Notices of Appeal deemed filed and served on the 7th April, 2009. The Amended Notice of Appeal is reproduced hereunder:
“AMENDED NOTICE OF APPEAL
Take Notice that the Accused person/Appellant being dissatisfied with the decision of the High Court, sitting at Ibadan contained in the judgment of the Honourable Justice J.O. Ige dated 28th day June, 2002 in Suit No 1/14C/2001, doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in Paragraph 4.
AND the Appellant further states that the names and addresses of persons directly affected by the Appeal are those set out in paragraph 5.
2. Part of the Decision of the Court appealed against
The whole decision as it affects the Appellant.
3. Grounds of Appeal
3.1 Errors of Law:
The learned trial judge erred in law to have convicted the Accused person of Armed Robbery when the Prosecution failed to produce the alleged stolen goods and monies at the trial of the accused person despite the accused person’s denial.
Particulars:
a. Money and clothes allegedly stolen were not tendered as Exhibits at police station and same were not produced in court.
b. Nothing incriminating was found on the Accused person, neither was the alleged stolen items found on the Accused person.
c. The accused person denied the charges against him.
3.2 Error of Law
The learned judge erred in law to have relied heavily on evidence of PW1 and PW2 to convict the accused person despite the glaring material contradictions in their statements to the police and evidence given at the trial.
Particulars:
a. The statements made by the prosecution witnesses at the police station are different from the evidence led at the trial.
b. The contradictions are materials to the fact in issue.
c. There was no explanation of the contradictions by the prosecution.
3.3 Error of Law
The court below erred in law in convicting the accused person of robbery charges when the prosecution failed to prove its case.
Particular of Error
a. All the ingredients of armed robbery were not proved before the court.
4. Relief Sought from the Court Appeal
To allow the appellant’s appeal and acquit the accused.
5. Person Directly Affected By This Appeal
Names: Addresses
1. The Respondent Ministry of Justice Ibadan
2. Olusina Ajayi c/o His Solicitors Niyi Olopade & Co. Leventis Building 42/43 Marina 3rd Floor, Lagos.
Dated this 15th day of December, 2008.
(Sgd.)
OLUSINA AJAYI c/o HIS SOLICITORS NIYI OLOPADE & CO. 2 LEVENTIS BUILDING (3rd FLOOR) 42/43 MARINA, LAGOS.
FOR SERVICE ON:
THE RESPONDENT MINISTRY OF JUSTICE OYO STATE IBADAN.”
From their Amended Notices of Appeal the 1st and 2nd Appellants have in their joint Brief of Argument dated the 7th May, 2009 and filed on the 14th May, 2009 formulated at page 3 of the said Brief of Argument the following issues for the determination of this court –
1. Whether the non-production of the alleged stolen goods and monies at the trial of the accused person had not vitiated the conviction of the accused persons.
2. Whether the apparent contradictions in the statements of PW1 and PW2 at the police station and evidence given by them during the trial as to nether they saw 1st appellant or not is fatal to warrant miscarriage of justice or not.
The Respondent for its part distilled the following sole issue at page 3, paragraph 3.01 of the Respondent’s Brief of Argument whether the trial court was justified in coming to the conclusion that the Respondent proved its case beyond reasonable doubt in view of the defence of alibi raised by the Appellants. This issue is dealt with by the Respondent under two subheads –
1. Whether the trial and conviction of the Appellants was vitiated by non production of the stolen goods and money.
2. Whether there were contradictions in the statements of the prosecution witnesses given at the police stations and their respective evidence on oath which occasioned a miscarriage of justice to the 1st ‘ Appellant.
The Respective Briefs of Argument of the parties i.e. the joint Appellants’ Brief of Argument of the 1st and 2nd Appellants dated the 7th May, 2009 and filed on the 14th May, 2009 and the Respondent’s Brief of Argument dated the 27th September, 2010, filed on the 28th September, 2010 and deemed properly filed and served on the Appellants on the 4th October, 2010 following the grant of a Motion on Notice by the Respondent to further extend time to file Respondent’s Brief of Argument and to deem the Respondent’s Brief of Argument already filed as properly filed were adopted and relied upon by the respective counsel for the parties. While M.N.O. Olopade counsel for the 1st and 2nd Appellants urged this court to allow the appeal, S. O. Adeoye, Director of Legal Drafting and Ministerial Counseling, Oyo state Ministry of justice urged us to dismiss the appeal and affirm the judgment of the lower court delivered on the 28th June, 2002.
It is abundantly clear that the two issues formulated by the Appellants and Respondent are exactly the same and are –
1. Whether the non production of the alleged stolen goods and monies at the trial of the Accused/Appellants had not vitiated the conviction of the Appellants; and
2. Whether there were contradictions in the Statements of the prosecution witnesses given at the Police Station and their respective evidence on oath which occasioned a miscarriage of justice to the 1st Appellant.
On issue 1, the 1st and 2nd Appellants submitted in their joint Brief of Argument that there was evidence before the court that the house of the Appellants was searched by the police and nothing incriminating was found, also none of the alleged stolen clothes or money was found in the house of the Appellants. The prosecution, it was contended failed to produce the alleged stolen goods before the court and no explanation was tendered for this omission. The alleged stolen goods and money were also not tendered at the police station and it is on record that the Appellants denied the charge and claimed alibi on the fateful day. It was further submitted that PW4 gave evidence that the sum of N4, 000:00 allegedly stolen by the Appellants belonged to his wife and his wife was not called to give evidence by the prosecution neither was the alleged stolen money produced in court during the trial. It was also submitted that although PW3 alleged that the Appellants robbed his wife of the sum of N500:00k and that his wife was beaten though pregnant, the alleged stolen sum of N500:00 was not produced in court, neither was his wife called to give evidence of this fact. It was also submitted that the prosecution failed to produce the alleged money and clothes stolen from PW1 and PW2. It was further submitted that since the charge alleged that certain items of property were stolen it is essential for the prosecution not only to prove that they were stolen but to produce them in court as exhibits, it was submitted that in a criminal trial where life is involved, it is not proper for a court to assume a piece of evidence against the Appellants as was done in this case.
The second Appellant was arrested the same day that the alleged robbery took place hence any of those alleged stolen goods and money could have been found on him more so when he was arrested at a police station while trying to report a case to the police. The case of NWOMUKORO V. THE STATE (1995) 1 NWLR PART 372 Pages 432- 450 was cited as illustrative of this position. It was further submitted that this is a case where production of the alleged stolen goods in court is mandatory in view of the fact that the Appellants are denying the charge against them unlike in the case of OLUWATOBA V. THE STATE (1985) SC 357 where the Supreme Court held that the production of the alleged stolen car was not mandatory because the thief was caught red handed with the car and he did not deny stealing the car.
Respondent has submitted in its Brief of Argument that failure of the Respondent to produce during trial the goods and money stolen from the victims of the armed robbery the subject matter of this appeal is not fatal to the Respondent’s case because the 1st – 5th Prosecution Witnesses who were victims and eye witnesses of the armed robbery incident told the court on oath that they all saw the accused persons inclusive of the Appellants at the scene and that they even chased the accused persons to the house of the 1st Appellant from where they escaped through the back door, Reliance was placed on the following cases – SUNDAY AKINYEMI V. THE STATE (1999) 6 NWLR (PART 607) 449; O. OLUWATOBI V. THE STATE (1985) 2 SC 357 at 359; BABY EGBEYOM V. THE STATE (2000) 4 NWLR (PART 654) Respondents submitted that the evidence of PW1 – PW5 was enough to prove the commission of the offence of Armed Robbery against the Appellants and that it is not for the Appellants to dictate to the Respondent the number of witnesses it should call to prove its case, The Respondent it was submitted could prove its case on the evidence of one provided the court was satisfied with the evidence of that sole witness. Reliance was placed on ABOGEDE V. THE STATE (1996) 37 LRCN 674 at 677 ALI V. THE STATE (1988) 1 NWLR (PART 68) 684; GIRA V. THE STATE (1996) 37 LRCH 688 at 693.
It is necessary at this stage to go into the Records and examine the evidence of the prosecution witnesses regarding recovered goods and moneys allegedly stolen and items belonging to the Respondents that were recovered at the scene of crime. PW1 is one Mr. Segun Adetona a Banker who says he knows the Appellants who live in the same neighborhood with him. He said as follows:
“I saw Sina 2nd accused person while beating my wife and my wife had to say, Alhaji Sina, and you are beating me! It was the 2nd accused that first entered the house while the others that is 1st, 3rd and 4th followed. After the accused persons had beaten my wife they then carted away her clothes, money and some of the medicines she was selling. When the accused left my wife’s room they stole my clothes, money – N800:00k. They later went to the room of my apprentice adjacent to my wife’s room. The thieves mutilated him on the head and palm. The following morning Godfrey was taken to the hospital where he was treated and he died three weeks later”. PW 1 went on to say that the cutlass used by the Appellants was left on his wife’s bed and when later the Appellant was confronted, he admitted the knife was his own as well as a cap at the scene
PW 2 Suara Yusuff also said he knew the Appellants and they broke into his house with cutlass, gun and hammer and when they demanded he gave them the N400:00k he had on him. They also carted away his clothes as well as his wife’s belongings after beating up his wife. He knows the 1st accused (2nd Appellant) that lives in the same vicinity with him. He said he followed the police to the 1st accuser’s (2nd Appellant) house during investigation and saw his clothes and those of his wife there and informed the police about these items. These items were recovered but have not been released to him by the police.
PW 3 Kamoru Atanda’s evidence was of how the Appellants and the other accused persons banged on his door and entered his house. They collected N500:00k from his wife and tortured her despite her pregnancy. They were armed with gun and cutlass. The next morning a cutlass and hammer with which they broke into the first house that was burgled as well as a cap were recovered. Under Cross examination he said his house is near that of PW 1 and PW 2.
PW 4 Alidi Fagbure is a bricklayer. His evidence is that on the 19th May, 1999 at about 3.30 a.m. he heard a shout of “open your door, open your door” and his wife went to open, “then I saw Sina that is 2nd accused (who he identified at the dock) and also Bukola (who was not charged by the prosecution) who held a gun while the 2nd accused was holding a gun. When they entered they took N4, 000:00k from my wife and two lace materials and N800:00k from me. When I wanted to escape from my house through the backyard I saw the 1st accused (2nd Appellant) who ordered me to go back”. This witness narrated how PW 1, himself, Dele Atanda “our night guard collected the cutlass, cap and hammer and took them to 1st accused (2nd Appellant). When we showed him the cutlass, hammer and the cap he admitted owning the cutlass and hammer but said his son 2nd accused is the owner of the cap”. The houses of the other witnesses’ PW1, PW 2 and PW 3 according to this witness were also robbed that day. He said that “on the day of the incident I saw 1st accused and Bukola very well”.
PW 5 is Dele Atanda a night guard whose evidence is that he knows all four armed robbers very well and that they robbed on the 19th May, 1999 when he was on duty. He said he heard a bang on PW 1’s door and went to wake up residents around to inform them that robbers were around. There was moonlight at the time and he could see the robbers very well. PW 1 and he on seeing 1st accused (2nd Appellant) next day confronted him with the objects they found. He said he owned the cutlass but that the cap belonged to the 2nd accused (1st Appellant). It is instructive to note here that the evidence of PW 1, PW 2, PW 3, PW 4 and PW 5 scaled through the rigours of cross examination.
Against the backdrop of these pieces of evidence from PW 1 – PW 5 could it have mattered if the alleged stolen goods and money were not tendered or the wives of some of the prosecution witnesses were not invited to give evidence both as to their loss of money and the fact that they were beaten up by the Appellants and the accused persons? where there is overwhelming evidence from witnesses which is not contradicted and which is believed by the court that properties and money were stolen as for example during an armed robbery operation or certain items were used during the operation or that certain items of property as for example a cap belonging to one of the alleged robbers was left behind, the non tendering of these items in court as exhibits will not be sufficient to destroy the prosecution’s case, For example there is ample evidence from most of the prosecution witnesses that when the 1st accused (2nd Appellant) Kareem Olatinwo was accosted with the cutlass, cap and hammer recovered from the scene of robbery he admitted that while the cutlass and hammer belonged to him, the cap belonged to his son (2nd accused and 1st Appellant) Olusina Ajayi. The question here is whether that evidence coming from most of the prosecution witnesses and which is not destroyed by cross examination should not have been acted upon by the trial court simply because they were not tendered? That is not the position of the law. While the tendering of such items may be necessary, such tendering cannot be taken as essential in all circumstances where there is some other superior evidence that the trial court can believe and act upon. See OLUWATOBI V. THE STATE (1985) 2 SC 357.
Again it is at the discretion of the prosecution to decide who to field as a witness and the number of witnesses to be fielded. It is never the duty of the defence.
In IJIFOR V. THE STATE (2006) 6 NSCQR (PART 1) 209 at 237; ACHIKE JSC put it clearly thus,
“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How they get around achieving this is entirely their responsibility. Whether they field one two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case, but under no circumstances will the accused person dictate to the prosecution regarding the persons they field as witnesses”.
The same principle applies on who to field and not only on number of witnesses to field. It is not therefore open to the Appellants to say that the prosecution should have called as witnesses the wives of PW 3 and PW 4 to give evidence at the trial in the court below.
In N. M. ALI & ANOR. V. THE STATE (1988) 1 NWLR (PART 68) 1, the Supreme Court held that although the burden is on the prosecution in a criminal case to prove its case beyond reasonable doubt, it has absolute discretion to determine which witnesses to call to prove its case. Where there are several witnesses to an event, the law does not compel the prosecution to call all of them as witnesses. Rather the prosecution is required to call only those it considers material in order to establish its case. See also ADAJE V. THE STATE (1979) 6 – 9 SC 18; OKONOFUA V. THE STATE (1981) 6 – 7 SC 1. I therefore resolve issue 1 in favour of the Respondent against the 1st and 2nd Appellants.
Issue 2 is whether there were contradictions in the statements of the prosecution witnesses given at the police stations and their respective evidence on oath which occasioned a miscarriage of justice to the 1st Appellant.
The Appellants have submitted in their Joint Brief of Argument that except PW 5, all the prosecution witnesses claimed in their written statements at the police station immediately after the alleged robbery that they did not see 1st Appellant at the scene of the robbery but they heard his voice commanding the gang during the robbery operations. It was submitted for the 1st and 2nd Appellants that where there are material contradictions in the testimonies of prosecution witnesses on a material fact and the contradictions are not explained by the prosecution through any of the witnesses, the trial court should not act on the evidence of such witnesses. The cases of ENOGA V. THE STATE (1977) 7 SCMJ 518; JOSHUA V. THE STATE (1964) 1 ALL NLR 1 were relied upon.
As had been earlier stated in this judgment, the prosecution does not have to assemble a host of witnesses to prove its case. Just one credible witness is enough to completely upset and dismantle the evidence of the defence. The Appellants have conceded that PW 5 was just such a witness. Quite apart from PW 5, the court below listened to the evidence of PW 1 – PW 4 as well and their demeanour to come to the conclusion that they were witnesses of truth who should be believed, Indeed the evidence of PW 5 and PW 2 without more which were not discredited by cross examination were enough to convict the 1st Appellant. If there were contradictions in the evidence of prosecution witnesses how material were the contradictions? The law is clear that for an appellate court to set aside the findings of a lower court based on contradictions, such contradictions must be material. See ARCHIBONG V. THE STATE (2007) 10 WRN 1; (2006) 5 SCNJ 2022 at 2035.It is pertinent to now state the evidence of some of the prosecution witnesses. PW 1 Segun Adetona said a heavy stone was thrown at his door: The lantern was not put off and he saw 2nd accused (2nd Appellant) whose name he correctly gave as Sina beating his wife. Even PW 1’s wife had to say to 2nd Appellant “Alhaji Sina and you are beating me”, Even PW1’s wife knew the name of 1st accused (2nd Appellant). The robbers carted away clothes and money and mutilated one Godfrey an apprentice of PW 1 who later died. 1st accused (2nd Appellant) admitted that the cutlass that had been used on Godfrey was his.
PW 2 Suara Yusuff who said his house was broken into said he knows the Appellant and the other robbers and when they broke into his house they were armed with gun, cutlass and hammer. He and his wife were robbed of their clothes and other goods. When PW 2 and his wife got to the police station at the break of day to report the incident they saw 2nd accused (1st Appellant) that had come to report that he too was robbed but the police disbelieved him and got him arrested instead. PW 2 also said he and others chased 1st accused (2nd Appellant) to his house and the 1st accused escaped through the back door of his house.
PW 4 Alidu Fagbure who also said he was robbed on the night of the incident by the Appellants and others was
able to identify the 2nd accused (1st Appellant) in the dock whom he called by his name Sina as one of the robbers. He also saw one Bukola a lady holding a gun. Curiously Bukola was not charged having presumably absconded. When he wanted to escape from his house now invaded by the robbers the 1st accused (2nd Appellant) ordered him to go back. At dawn PW 4 and others met 1st accused (2nd Appellant) who admitted owning the cutlass and hammer recovered at the scene but said his son 2nd accused (1st Appellant) owned the cap also recovered at the scene. PW 4 said in evidence that on the night of the incident he saw 1st accused (2nd Appellant) and Bukola (the lady not charged but alleged by several witness to have been armed with a dane gun) very well.
PW 5 Dele Atanda was a neighborhood night guard at the time of the armed incident. He said he knew the Appellants and the other robbers very well and because there was moonlight he found no difficulty in identifying them. He also said he joined in chasing the Appellants and the other robbers who escaped through the door of the 1st accused’s (2nd Appellant) house. He also said that when he and others confronted the 1st accused (2nd Appellant) later with the recovered items at the scene of the robbery, 1st accused (2nd Appellant) said he was the owner of the cutlass but 2nd accused (1st Appellant) owned the cap.
At the police station at dawn, PW 5 said he saw the 2nd accused (1st Appellant) already lodging a complaint that he was robbed when he (PW 5) grabbed him and said he was the thief. PW 5 also said that at the police station 2nd accused (1st Appellant) admitted that he owned the cap while the 2nd Appellant owned the cutlass and hammer.
It can thus be seen that there is no inconsistency or contradiction in the evidence adduced by Pw 1 – Pw 4 to the effect that the Appellants were among those armed robbers that took part in the robbery operation on the night of the incident. The pieces of evidence adduced by PW 1 – PW 5 are consistent, free flowing, harmonious and corroborate one another about the involvement of the 1st and 2nd Appellants in the robbery operation of the 19th May 1999. If as was earlier stated the Appellants have conceded that the only uncontradictory evidence to the police and in court as to the guilt of the Appellants to the robbery crime is that of PW 5, that evidence alone is enough in proof of the guilt of the Appellants not having been destroyed by cross examination.
Issue 2 is therefore resolved in favour of the Respondent against the 1st and 2nd Appellants.
A third issue is necessary in the determination of this appeal and it is whether the prosecution has proved its case against the Appellants beyond reasonable doubt to warrant the conviction and sentence to death of the Appellants. In all criminal trials proof is beyond reasonable doubt. To this end Section 138 (1) of the Evidence Act Laws of the Federation of Nigeria 2004 provides as follows:-
(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 141 of this Act on the person who asserts it whether the commission of such is or is not directly in issue in the action.”
The effect of the provision of Section 138 (1) of the Evidence Act is that the prosecution has a duty to establish all the ingredients of the offence with which the accused is charged. Any doubt arising in proof of even one of the ingredients of the offence must be resolved in favour of the accused person. See OWE V. QUEEN (1961) 2 SCNLR 354; HASSAN V. THE STATE (2001) 6 NWLR (PART 709) 286; NWEKE V. THE STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588; TANKO V. THE STATE (2008) 31 WRN 117; (2008) 15 NWLR (PART 1114) 597 at 636.
In our criminal law system, an accused is presumed innocent until he is proved guilty. See OMEREGIE V. THE STATE (2008) 35 WRN 187; (2008) 18 NWLR (PART 119) 464; OPEYEMI V. THE STATE (1985) 2 NWLR (PART 5) 101; (1985) 2 NSCC 921.
With these as parameters, was the lower court right in its decision to convict and sentence the Appellants to death on a charge of conspiracy to commit armed robbery and armed robbery? To answer this question a necessary first step is to ask the question how ought armed robbery to be proved by the prosecution and what is the meaning of conspiracy. In SAMUEL BOZIN V. THE STATE (1985) 2 NWLR (PART 8) 465 at 467; (1985) 16 NSCC (PART 11) 1087; (1985) 7 SC 450, the Supreme Court held that for the prosecution to succeed in proof of the offence of armed robbery the prosecution must prove beyond reasonable doubt the following –
(i) That there was a robbery or series of robberies;
(ii) That each robbery was an armed robbery;
(iii) That the accused was one of those that took part in the robbery or robberies.
See also OKOSI V. A. G. BENDEL STATE (1989) 1 NWLR (PART 100) 642; (1989) 1 SCNJ 29; ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511 at 523.
I shall now proceed to consider these points before dealing with conspiracy.
That there was a robbery on the 19th May, 1999 at Oke-Omi Olodo Area, Ibadan is not in doubt. Not even the 1st and 2nd Appellants have contested this fact pleading alibi and even contending that they themselves were robbed on the night in question. That the robbery was an armed robbery is also not in doubt. The prosecution contended that gun, cutlass and hammer were used in the robbery operation. It must be stated at this stage and noted that under the Armed Robbery and Firearms (Special Provisions) Act, guns, cutlass and hammer are firearms and offensive weapons”. All the prosecution witnesses especially PW 1 – PW 5 alluded to the fact that gun, cutlass and hammer were used in the robbery operation and these pieces of evidence as to the use of these weapons by the Appellants was not attacked or even addressed at all by the Appellants throughout their evidence in the High Court. As to the third requirement that the 1st and 2nd Appellants took part in the robbery of the 19th May, 1999, it would be unduly and unnecessarily repetitive of the evidence of the Respondents witnesses – PW 1 – PW 5 to that effect. The Appellants were people who lived in the neighborhood and were well known even to their names by PW 1 – PW 5. PW 5 the night guard’s evidence was to the effect that it was a moonlit night and he could identify the robbers including 1st and 2nd Appellants. Even at the police station when the 1st Appellant arrived to report that he and the 2nd Appellant were robbed that night PW 5 grabbed him and said he was the robber. There is uncontradicted evidence that the 1st and 2nd Appellants along with others were chased by the prosecution witnesses and they escaped through the backyard door of the 1st accused (2nd Appellant’s) house. There is also uncontradicted evidence that the 1st accused (2nd Appellant) admitted when he was confronted by the prosecution witnesses that the cutlass and hammer used in the robbery operation belonged to him while the cap also found around the scene of crime belonged to his son the 1st Appellant. Were these acts of the 1st and 2nd Appellants independent of one another or was there a conspiracy? Conspiracy involves a meeting of the minds of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means and conviction for conspiracy is based usually by circumstantial evidence. Blacks Law Dictionary 8th Edition at page 329 defines conspiracy as “An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s objective” see UPAHAR V. THE STATE (2003) 6 NWLR (PART 816) 230; ODUNEYE V. THE STATE (2001) 2 NWLR (PART 697 311 at 324; PATRICK NTOVENS V. THE STATE (1973) 5 SC 17;
Armed Robbery is most certainly an unlawful act and there is no doubt that there was a meeting of the minds of the 1st and 2nd Appellants to commit armed robbery on the night of the 19th May, 1999 and they did carry out the act of armed robbery with the use of gun, cutlass and hammer which are Firearms and Offensive weapons within the meaning of the Robbery and Fire Arms (Special Provisions) Act. The learned trial judge was right to have rejected the plea or defence of alibi put up by the Appellants. I find his reasoning sound and see no reasons to upset it.
Accordingly I affirm the judgment of Ige J delivered on the 28th June, 2002 in suit No. I/14c/2001.
SIDI DAUDA BAGE, J.C.A.: I was privileged to read in advance the lead judgment delivered by my learned brother, S.S. ALAGOA, J.C.A. I am in full agreement with the reasonings and conclusions contained in the said judgment, affirming the decision of the lower court.
I abide with the consequential orders contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of perusing before now the judgment prepared by my learned brother, Alagoa, J.C.A., in which I fully concur.
The prosecution is not obliged to call a host of witnesses to prove its case. Only material witnesses disposed to rendering truthful evidence are expected to be called by the prosecution-see Twumasi v. Ankrah (1955) 14 W.A.C.A. 673 at 675 thus:
“The first submission on behalf of the appellant was that the trial Judge erred in not directing the prosecution to call two eye-witnesses in the room”. This court held in Regina v. Kwabena Yeboah (W.A.C.A., 2nd April, 1954) that a prosecutor is relieved from calling a witness present at the commission of a crime if he has a reasonable belief that the witness will not speak the truth.”
See also Akpa v. The State (2008) 4 SCNJ 250 at 265:
“The prosecution has no duty to call a village, community or barrage of witnesses before the court can convict an accused person. In law, one witness of truth can result in the conviction of an accused person unless in an offence where corroboration is statutorily required.”
I, too, agree that the appeal lacks merit. I hereby dismiss it and affirm the judgment of the court below.
Appearances
M.N.O. OLOPADE EsqFor Appellant
AND
S.O. ADEOYE EsqFor Respondent
