ORMBAGBA v. STATE (2020)

ORMBAGBA v. STATE

(2020)LCN/15333(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/16CA/2017

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

IORPUU ORMBAGBA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE MEANING OF THE LATIN MAXIM “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS”

The invocation of the latim maxim expressio unius est exclusio alterius by appellant’s counsel does not advance his position. The maxim means that the express mention of one thing is the exclusion of another. The implication is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. However, it has been held that the maxim has little weight where it is possible to show that there is no intention to effect an “exclusioalterius” by the use of any “expresssio unius”. See Nafiu Rabiu V State. (1980) LPELR – 2936 (SC) 33 – 34. PER EKANEM, J.C.A.

RULES TO APPLY WHEN DETERMINING THE MEANING OF A STATUTE

The law is that where an enactment can be construed and can operate so as not to be inconsistent with the constitution, such construction and manner of operation should be preferred to any other construction that would lead to inconsistency. See Shell Petroleum Development Company (Nig) Ltd V Lalibo (2009) 14 NWLR (Pt. 1162) 564, 591 – 592. Again, two of the rules that have been held to apply when determining the meaning of a statute are that:
1. The statute is presumed not to bind the Constitution
2. The statute does detract from constitutional law or international law. See Musical Copyright Society of Nigeria (Limited/GTE) (MCSN) V Compact Disc Technology Ltd (2019) 14 NWLR (Pt. 1661) 1, 28 and General Cotton Mill Ltd V Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507, 531. PER EKANEM, J.C.A.

ELEMENTS TO PROVE THE OFFENCE OF ROBBERY

The offence of armed robbery consists of the following elements:
(1) That there was a robbery or series of robberies.
(2) That each robbery was an armed robbery.
(3) That the accused was one of those who took part in the armed robbery or armed robberies. See Bozin V The State (1985) 2 NWLR (Pt. 8) 465, Adekoya V The State (2012) 9 NWLR (Pt. 1306) 539 and Ikpo V The State supra. PER EKANEM, J.C.A.

FACTORS TO DETERMINE THE WEIGHT TO BE ATTACHED TO THE EVIDENCE OF AN EYE WITNESS IN RESPECT OF IDENTIFICATION OF A CRIMINAL

Since there is no jury trial in Nigeria, a Judge confronted with the problem of identification is to apply the caution to himself and closely examine identification evidence alongside other pieces of evidence including the evidence of the defence.
In determining the weight to be attached to the evidence of an eye witness in respect of identification of a criminal, the Court must meticulously consider the following:
(a) The circumstances in which the eye-witness saw the suspect;
(b) The length of time the eye witness saw the suspect.
(c) The lighting conditions.
(d) The opportunity of close observations. PER EKANEM, J.C.A.

CIRCUMSTANCES WHERE AN IDENTIFICATION PARADE IS NECESSARY

An identification parade is necessary where;
(a) the victim did not know the accused previously;
(b) the victim was confronted by the offender for a very short period of time;
(c) where the victim, due to time and circumstances, might not have had the opportunity to observe the features of the accused. See Ikemson V State (1989) 1 NWLR (Pt. 110) 455, Nwaturuocha V State (2011) 6 NWLR (Pt. 1242) 170 and Wisdom V The State (2017) 14 NWLR (Pt. 1586) 446.
Conversely, an identification parade is unnecessary when the suspect is caught at the scene of the crime or at a place closely connected with the scene of the crime. See Babarinde V State (2014) 3 NWLR (Pt. 1395) 568, 597. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Benue State holden in Makurdi (the trial Court) in Charge No. MHC/68C/2013 delivered on 18/11/2014. In the judgment, the trial Court (coram Hwande, CJ.) found the appellant, along with his co – accused person, guilty of the offences of conspiracy and armed robbery under Section 6(b) and Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 515 Laws of the Federation of Nigeria, 2010. He was accordingly sentenced to death by hanging along with his co – accused person. The appellant was the 2nd accused person.

Dissatisfied with the turn of events the appellant appealed to this Court by means of a notice of appeal which incorporates six grounds of appeal.

The facts of the case leading to this appeal as presented by the prosecution are that on 26/11/2012 in Buwa, Tse Andema, Makurdi Local Government Area of Benue State, the appellant in the company of two other persons robbed one Stephen Akure of the sum of N50,000:00, one Techno (GSM) handset and a Jincheng Motorcycle while armed with cutlasses and a gun. The victim raised an alarm and the appellant and his co – accused person were arrested by the villagers. The third assailant escaped with the motorcycle and the stolen sum of money.
The appellant denied being one of those who robbed Stephen Akure.

At the hearing, the prosecution called two witnesses. The PW1 (the victim of the armed robbery) and the PW2 (the Investigating Police Officer). Through the PW2 the prosecution tendered 6 exhibits, to wit;
(i) Ak 47 rifle – Exhibit A
(ii) 54 live ammunitions – Exhibit B
(iii) Bullet proof vest and charms – Exhibit C
(iv) (GSM) Handset – Exhibit D
(v) Extra- judicial statement of appellant’s co-accused – Exhibit E
(vi) Extra – judicial statement of the appellant – Exhibit F

Appellant testified in person as DW2 and did not call any other witness or tender any exhibit. After taking addresses of counsel, the trial Court found the appellant and his co – accused guilty as I have already stated.

At the hearing of the appeal on 2/6/2020, E.O. Okoro, Esq., of counsel, for appellant, adopted and relied on appellant’s brief of argument filed on 27/1/2017 but deemed filed on 10/10/2017 in urging the Court to allow the appeal, set aside the judgment of the trial Court, and discharge and acquit the appellant.

J.I. Wombo, Esq. (Chief Legal Officer, Ministry of Justice, Benue State) urged the Court to dismiss the appeal and affirm the judgment of the trial Court. In doing so, he adopted and relied on the respondent’s brief of argument which was filed on 27/9/2019 and deemed duly filed and served on 2/6/2020.

In the appellant’s brief of argument, the following issues are formulated for the determination of the appeal:
“1. Whether the finding by the trial Court that the 1st Accused stated in his evidence that he was not arrested with a gun but when reminded of the statement he made to the police, the 1st Accused retracted and admitted having a gun at the time of his arrest is perverse and which negatively affected the mind of the Court in convicting 1st Accused and the Appellant. (Ground 1)
2. Whether the trial Court was right when he failed to consider crucial issue of identification parade raised by the defence one way or the other. (Ground 2)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the trial Court properly evaluated the evidence before him before arriving at the decision that the prosecution had proved the charges against the Appellant beyond reasonable doubt. (Grounds 3, 4 and 5)
4. Whether the trial Court was right to have assumed jurisdiction to entertain the charge when there was no leave to prefer a charge against the accused persons. (Ground 6)”

In the respondent’s brief of argument, the following single issue has been crafted for the determination of the appeal:
“Whether the trial Court properly evaluated the evidence before him before arriving at the decision that the prosecution had proved the charges against the Appellant beyond reasonable doubt”.

Having read the grounds of appeal, it is my view that two issues arise for the determination of the appeal, to wit:
1. Was the trial Court right in assuming jurisdiction to hear and determine the matter when leave of the High Court was not obtained to prefer the charge?
2. Was the trial Court right in convicting the appellant of the offences charged?

I shall commence the consideration of the appeal with issue 1 since it raises a question touching on the competence of the trial Court

Issue 1 – Was the trial Court right in assuming jurisdiction to hear and determine the matter when leave of the High Court was not obtained to prefer the charge?
Appellant’s counsel stated that before the Criminal Procedure Code Cap. 51 (Revised Edition) Laws of Benue State 2004 came into force, the applicable law was the Criminal Procedure Code Cap 30 Laws of Northern Nigeria, 1963, particularly Section 185 thereof. He referred to the case ofBature V State (1994) 1 NWLR (Pt. 320) 287 in submitting that the provision is mandatory. He posited that the law applicable to Benue State is Section 185 of the Criminal Procedure Code (CPC) of Benue State. He noted that the charge was preferred by J.I. Wombo Esq. who described himself as Senior State Counsel, Ministry of Justice, Makurdi. He added that he was not the Attorney – General of Benue State and also that he did not seek leave to prefer the charge.

Counsel admitted that J.I. Wombo, Esq. claimed to have preferred the charge on behalf of the Attorney – General but he contended that by Section 185 of the CPC it is only the Attorney – General of Benue State that has the right to prefer a charge against any person in the High Court without leave. It was his further contention that all the lawyers in the chambers of the Attorney – General of Benue State including the Attorney – General are prosecutors, but by Section 185(a) and (b) of CPC, the Attorney – General is the only prosecutor that can prefer a charge in the High Court without obtaining leave. He emphasised that the power to prefer a charge without leave can only be exercised by the Attorney – General personally and not on his behalf by any other prosecutor. He invoked the latinese expressio unius est exclusio alterius.

He argued that if the legislators had intended that lawyers in the chambers of the Attorney – General can exercise such right, they would have expressly stated so in the provision as is done in Section 211(1) of the Constitution of Nigeria, 1999 (as amended).

On his part, respondent’s counsel argued that any objection to the competence of a charge that is not raised at the point of taking plea is of no effect. He placed reliance on Amadi V Federal Republic of Nigeria (2009) Vol. 6 SCLR (Pt. 20) 179. It was further argued that the charge was competent as it was preferred in accordance with the provisions of Section 211(1) and (2) of the Constitution of Nigeria. Counsel submitted that the Constitution being the fons et origo of our laws is superior to the Criminal Procedure Code. Thus, he contended, even if the CPC provides contrary to the constitution, it would be null and void and of no effect. He finally asserted that J.I. Wombo, as an officer of the Attorney – General’s department, validly preferred the charge.

The contention of appellant’s counsel under this issue touches on the competence of the trial Court to entertain and determine the matter. A Court is said to be competent when –
(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See Madukolu V Nkemdilim (1962) ANLR (Pt. 2) 581 (reprint) and Bature V The State (1994) 1 NWLR (Pt. 320) 267.

The contention of the appellant is focused on the second part of the third component of competence.
Section 185 of the Criminal Procedure Code, (CPC) Cap. 51 Laws of Benue State of Nigeria, 2004 provides:
“No person shall be tried by the High Court unless –
(a) a charge is preferred against him in the High Court by the Attorney – General;
(b) a charge is preferred against him by a prosecutor other than the Attorney – General, by leave of the High Court;
(c) a charge of contempt is preferred against him in accordance with the provisions of Section 314 or Section 315”.
Our concern in this issue is in respect of (a) and (b). The provisions are clear that the High Court can only try a person for an offence where (a) a charge is preferred against him by the Attorney – General or (b) a charge is preferred against him by a prosecutor other than the Attorney – General with the leave of Court. An application by a prosecutor other than the Attorney – General is made pursuant to Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970. The essence of Section 185 (b) of the CPC is to ensure that a person is not made to pass through the furnace of criminal trial if the charges against him are flimsy. See Bature V The State supra. 291.
Contrary to the suggestion of respondent’s counsel, a breach of Section 185(b) of the CPC is not a mere irregularity; it goes to the root of the matter and affects the jurisdiction of the Court. In Bature V The State supra. 291, Ogundare, JSC, in interpreting a similar provision in Section 185 (b) of the Criminal Procedure Code of Northern Nigeria, 1963 held that:
“Non – compliance with Section 185 of the Code, in my respectful view, is not a mere irregularity. I agree with learned counsel for the appellant that failure to comply with the requirements of the section would render a trial of an accused person in the High Court a nullity”.
The opinion of Ogundare, JSC was the common position of his learned brothers including Onu, JSC, who wrote the lead judgment. It follows therefore that respondent’s counsel was not right when he submitted that the objection is misconceived as it was not raised at the point of taking of plea. An objection to the jurisdiction of a Court can be raised for the first time at any stage of the case even on appeal. See Bature V State supra. 283.
In this instance, the charge was not signed by the Attorney – General himself but by “J.I. Wombo, Senior State Counsel, Ministry of Justice, Makurdi”. However, in the opening paragraph of the charge, J.I. Wombo stated as follows:
“BY THE POWERS CONFERRED ON ATTORNEY – GENERAL OF BENUE STATE THE (SIC) BY VIRTUE OF SECTION 185(A) OF THE CRIMINAL PROCEDURE CODE, (REVISED EDITION OF BENUE STATE) 2004, I, J.I. WOMBO, SENIOR STATE COUNSEL, ON BEHALF OF THE HONOURABLE ATTORNEY – GENERAL, BENUE STATE DO BRING THE CHARGE HEREUNDER AGAINST THE ABOVE – NAMED ACCUSED PERSONS”.
In other words, J.I. Wombo, Esq. stated unequivocally that in preferring the charge he was acting “on behalf” of the Attorney – General pursuant to the latter’s power under Section 185(a) of the CPC and not pursuant to Section 185(b) of the CPC. When one acts “on behalf” of somebody, he acts;
“as the representative of somebody/on somebody’s behalf … for somebody” – Oxford Advanced Learner’s Dictionary 7th Ed. Page 121.
As a counsel therefore, J.I. Wombo, must be taken by his word as having preferred the charge on behalf of or as the representative of the Attorney – General. The maxim is qui facit per alium facit perse, that is, he who acts by another acts by himself. In other words, the act of J.I. Wombo, Esq. in preferring the charge on behalf of the Attorney – General must be treated as having the same legal effect as if it had been preferred by the Attorney – General himself. In Bowstead & Reynolds’ on Agency 18th Ed., page (1) par 1 – 001, it is stated that
“The ruling notion of agency law may be said to be that the acts of a person (the agent) authorized, by another are in certain circumstances to be treated as having the same legal effect as if they had been done by that other (the principal)”.
The power of the Attorney – General to act by himself or through officers of his department is well recognized both by the Constitution of Nigeria, 1999, as amended and by the Courts of the land. Section 211(1) (a) and (2) of the Constitution provides:
“(1) The Attorney – General of the State shall have power –
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court – martial, in respect of any offence created by or under any law of the House of Assembly
(2) The powers conferred upon the Attorney – General under subsection (1) of this section may be exercised by him in person or through officers of his department”.
In Federal Republic of Nigeria V Adewunmi (2007) LPELR – 1273 (SC) 13 – 14 Kalgo, JSC stated that:
“There is no doubt at all that the power to institute criminal proceedings against any person in the 1999 Constitution lies on the Attorney – General of the State or the Federation as the case may be, but such power may be exercised by the Attorney – General himself or through any officers of his department …” See also Ibrahim V State (1986) 2 SC 91, Amaefule V The State (1988) LPELR – 450 (SC), Attorney – General of Kaduna State V Hassan (1985) 2 NWLR (Pt. 8) 483 and Saraki V Federal Republic of Nigeria (2016) 3 NWLR (Pt. 1500) 531.
Since J.I. Wombo, Esq. expressed the position that he preferred the charge “on behalf of the Attorney – General, Benue State”, it must be taken as the “gospel truth” that it was the Attorney – General of Benue State that preferred the charge.
The invocation of the latim maxim expressio unius est exclusio alterius by appellant’s counsel does not advance his position. The maxim means that the express mention of one thing is the exclusion of another. The implication is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. However, it has been held that the maxim has little weight where it is possible to show that there is no intention to effect an “exclusioalterius” by the use of any “expresssio unius”. See Nafiu Rabiu V State. (1980) LPELR – 2936 (SC) 33 – 34.
There is nothing in Section 185 of the CPC that limits the constitutional power of the Attorney – General to act through an officer of his department. Once an officer of that department declares, as in this instance, that he is authorized or is acting on behalf of the Attorney – General, Section 185 (a) of the CPC is complied with, for he who acts by another acts by himself. This takes such a case outside Section 185(b) of the CPC.
There is no doubt that Section 211(1) – (3) of the Constitution talks of the power of public prosecutions vested in the Attorney – General while Section 185 of the CPC provides for what Ogundare, JSC, described as “contingent jurisdiction” of the Court, in Bature V The State supra. 291. The two are not exactly the same. However, giving a nod to the position of appellant’s counsel will imply that when it comes to the power of public prosecution, the Attorney – General can act through officers of his department but in respect of the contingent jurisdiction of the Court under Section 185 of the CPC, the Attorney – General is forbidden from acting through officers of his department. The law is that where an enactment can be construed and can operate so as not to be inconsistent with the constitution, such construction and manner of operation should be preferred to any other construction that would lead to inconsistency. See Shell Petroleum Development Company (Nig) Ltd V Lalibo (2009) 14 NWLR (Pt. 1162) 564, 591 – 592. Again, two of the rules that have been held to apply when determining the meaning of a statute are that:
1. The statute is presumed not to bind the Constitution
2. The statute does detract from constitutional law or international law. See Musical Copyright Society of Nigeria (Limited/GTE) (MCSN) V Compact Disc Technology Ltd (2019) 14 NWLR (Pt. 1661) 1, 28 and General Cotton Mill Ltd V Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507, 531.
The implication of the above and the sum of all that I have said thus far is that in respect of Section 185 (a) and (b) of the CPC, where the Attorney – General prefers a charge by himself or it is expressed that the charge is preferred on his behalf, there is no requirement for leave of the High Court to be obtained. Where an officer of the Attorney – General’s department prefers a charge in his capacity as such, leave of the High Court is mandatory otherwise the High Court is deprived of jurisdiction to try the matter.
I must state that I am not unaware of the decision of this Court in Vuyor V The State (2014) 2 NWLR (Pt. 1390) 196, where Aboki, JCA, held that the Attorney – General himself must prefer the charge. Mbaba, JCA at page 209 opined that the general presumption that counsel from the official bar who prosecute criminal charges on behalf of the Government are from the Chambers of the Attorney – General as contemplated by Section 211(2) of the 1999 Constitution (as amended) was defeated in that case by the fact that in preferring the charge, the Principal State Counsel applied for leave to prefer the same though he stated that he acted on behalf of the Attorney – General; but he failed to move the application. At page 210 Mbaba, JCA, opined:
“Having made that application for leave, the prosecution had acknowledged and conceded their need to seek and obtain leave of Court to prefer the charge. If they had reason to change their mind on that, they ought to have stated so and withdraw the application for leave, formally”.
My understanding of the above is that if the Principal State Counsel had simply stated that he acted on behalf of the Attorney – General without applying for leave, Section 185(a) of the CPC, Jigawa State, would have been complied with.
On the whole, it is my considered view that in the circumstances of this case and especially in the light of the statement in the charge earlier quoted in this judgment, Section 185(a) of the CPC was complied with.
I therefore enter an affirmative answer to issue one and resolve it against the appellant.

Issue 2 – Was the trial Court right in convicting the appellant of the offences charged?
Appellant’s counsel stated that one of the crucial findings that negatively affected the mind of the trial Court was the finding that the 1st accused person initially denied holding a gun at the time of his arrest but on being reminded of his extra – judicial statement, he admitted having a gun at the time of his arrest. Counsel referred to the evidence of the 1st accused (as DW1) and posited that the finding was not borne out by the record which shows that the 1st accused consistently testified that he was arrested with a gun in his possession though he gave an explanation for that state of things. Counsel referred to the judgment of the trial Court particularly page 51 of the record and submitted that the finding, which he described as perverse, negatively affected the mind of the trial Court against the appellant.

He referred to the address of counsel for the appellant in the trial Court wherein it was argued that an identification parade ought to have been carried out by the police. He reviewed evidence of PW1 and submitted that an identification parade was essential in the circumstances of the case. He further submitted that the trial Court erred fundamentally in failing to make a pronouncement on the crucial issue of the necessity of an identification parade. This, he posited, resulted in a miscarriage of justice.

Continuing, counsel noted that the appellant and his co – accused were charged with conspiracy and armed robbery. He set out the ingredients of armed robbery and then referred to the evidence of the PW1 (the victim). He noted that he (PW1) did not produce the purchase receipt of his motorcycle and did not also describe his (GSM) handset that was said to have been stolen or produce the receipt of the same. He stated that the PW1 did not identify the handset (Exhibit D) as his own. Counsel pointed out that none of the villagers who arrested the appellant or the police officers to whom the appellant was handed over by the villagers testified. It was his contention that this was fatal to the case of the prosecution.

Counsel re-iterated that the 1st accused explained why he had possession of the gun that he was arrested with, to wit; that he was in possession of the gun as a result of the crisis between Tivs and Fulani herdsmen. He stated that the PW1 confirmed the existence of the crisis. He then queried how the villagers could arrest a robber with AK 47 (rifle) with live ammunitions without any attempt to resist such arrest by using the gun to scare them away.

He finally contended that there was a contradiction in the evidence of the PW1 as to what period of time it took for the villagers to arrest the appellant and his co – accused person after the robbery incident. He lamented that the trial Court failed to take into consideration the contradiction.

For the respondent, it was submitted that it had been established that the appellant and two other persons together robbed PW1 of his motorcycle, money and handset while armed with a gun and cutlasses. Counsel for respondent further submitted that there was enough evidence to infer conspiracy. He referred to Section 167(a) of the Evidence Act, 2011 (as amended) and further submitted that the trial Court rightly inferred guilt from the evidence that PW1’s stolen handset was found on the appellant. On the issue of identification parade, counsel argued that there was no dispute about the identity and identification of the appellant to warrant an identification parade. Again, he posited that the prosecution is not under an obligation to call a host of witnesses and therefore the fact that the villagers who arrested the appellant were not called to testify was not fatal to the case of the respondent. It was his contention that the contradiction alleged to be in the evidence of PW1 did not relate to the substance of the vital ingredients of the offences that were charged, and therefore did not vitiate the case of the prosecution. Reliance was placed on Musa V State (2012) 10 LRCNCC 255 among other cases to support the contention.

The appellant along with his co – accused person was charged with the offences of conspiracy and armed robbery contrary to Sections 6(b) and 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 515 Laws of the Federation of Nigeria, 2010. The burden was therefore on the prosecution to prove the guilt of the appellant beyond reasonable doubt. See Section 135 of the Evidence Act, 2011, Woolmington V D.P.P (1935) AC 462, Esangbedo V The State (1989) 4 NWLR (Pt. 113) 57 and Ikpo V The State (2016) 10 NWLR (Pt. 1521) 501. Proof beyond reasonable doubt implies the prosecution establishing the guilt of an accused person with compelling and conclusive evidence; a degree of compulsion which is consistent with a high degree of probability. If the evidence is strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. See Ikpo V The State supra. Once all the ingredients of the offence charged have been satisfactorily proved by the prosecution, the charge is proved beyond reasonable doubt. See Kassim V The State (2018) 4 NWLR (Pt. 1608) 20. Conversely, where even one of the ingredients of the offence is not satisfactorily proved, there is no proof beyond reasonable doubt and the accused person must be discharged and acquitted.

The law has been established that the proper approach to an indictment which contains conspiracy charge and substantive charge is to first deal with the latter, that is, the substantive charge and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See Amachree V Nigerian Army (2003) 3 NWLR (Pt. 807) 256, Osetola V The State (2012) 17 NWLR (Pt. 1329) 251, Jimoh V The State (2014) 10 NWLR (Pt. 1414) 105 and Agugua V The State (2017) 10 NWLR (Pt. 1573) 254. I shall therefore take the proper approach in determining issue 2.

From the evidence on record, it is not seriously in doubt that the first and second elements of the offence of armed robbery had been established before the trial Court. The evidence of PW1 in this regard was clear and cogent. The spirited attempt by appellant’s counsel to create doubt as to the ownership of the items stolen is belated and impotent as the PW1 was not cross – examined as to his ownership of the stolen motorcycle and the GSM handset as well the theft of the sum of N50,000:00 from him. InEgba V The State (2019) 15 NWLR (Pt. 1695) 201, 217 Nweze, JSC, held that:
“It has long been established that where an adversary fails to cross – examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence”. See also Odulaja V Haddad (1973) 11 SC 537 and Zubairu V The State (2015) 16 NWLR (Pt. 1486) 504.

The point in contest is as to whether or not the appellant was one of the persons who robbed the PW1 of his properties while armed with a gun and cutlasses. The prosecution, as earlier stated, called two witnesses. The PW1 was the only eye witness of the incident and the case of the prosecution hung mainly on the identification of the appellant by the PW1 as one of the robbers. The appellant denied being one of the robbers. In other words, the appellant disputed the identification or alleged it to be mistaken. In the case of Abudu V The State (1985) 1 NWLR (Pt. 1) 55, 61 – 62, Coker, JSC, stated thus:
“As the case against the appellant was based principally on the visual identification by PW1, her evidence should have been very closely examined and received with caution and weighed against that of the DW3. In this regard, I recall the warning given by Lord Widgery, C.J. in R V Turnbull (1976) 3 W.L.R. 445 at page 447, where he said:
“Each of these appeals raises problems relating to the evidence of visual identification in criminal cases. Such evidence can bring about miscarriage of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the Courts, including this Court, to reduce that number as far as is possible. In our judgment the danger of miscarriage of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.
First whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications …”
“Recognition may be more reliable; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of mistaken identification is lessened; but the poorer the quality, the greater the danger”. See also Mbenu V The State (1988) LPELR – 1855 (also (1988) 7 SCNJ (11) 211), Ndidi V The State (2007) 13 NWLR (Pt. 1052) 633 and Sale V State (2016) 3 NWLR (Pt. 1499) 392.
Since there is no jury trial in Nigeria, a Judge confronted with the problem of identification is to apply the caution to himself and closely examine identification evidence alongside other pieces of evidence including the evidence of the defence.
In determining the weight to be attached to the evidence of an eye witness in respect of identification of a criminal, the Court must meticulously consider the following:
(a) The circumstances in which the eye-witness saw the suspect;
(b) The length of time the eye witness saw the suspect.
(c) The lighting conditions.
(d) The opportunity of close observations.

(e) The previous contact between the two persons. See Mbenu V The State supra., Ndidi V The State supra. and Sale V The State supra.

The PW1 testified that he was robbed in the evening by the accused persons (and that includes the appellant). He testified that he put on his motorcycle light and that he could not see well without the light. He further testified that his motorcycle light reflected on the accused persons and that he could recognize the 3rd accused (sic; assailant) who ran away with his motorcycle. In further cross – examination, he torpedoed his identification evidence when he stated at page 39 of the record of appeal that:
“I will be unable to identified (sic) the 3rd suspect that ran away. It is correct that if the 2nd (sic; 2) accused persons were not arrested. I would not have been able to identify them”.

The implication of the above is that it was not on the basis of visual identification that he identified the appellant as one of the robbers but his identification was based on the fact that the appellant was one of the persons arrested by Andema Villagers. In essence the PW1 was simply saying, “I recognize the appellant because he was one of those that the villagers arrested”.

Evidence of the circumstances of the arrest of the appellant and his co – accused person by the Andema Villagers therefore became vital so as to be able to link them with the crime. The PW1 was not present when the arrest was made. He testified that he went to the place of the arrest after the arrest. His evidence as to the circumstances of the arrest was therefore hearsay. None of the villagers who arrested the appellant and his co – accused person was called to give evidence as to the time, circumstances and place of the arrest.

Appellant’s testimony was that he did not know the 1st accused person and only met him when he was arrested by the police. In cross – examination, he stated that he did not inform the police that he was with the 1st accused who was holding a gun and that they were going to Andema village. However, in Exhibit 7, his extra – judicial statement to the police, he stated that he, the 1st accused person and another were going to Adoma village from Anter village and that the 1st accused was armed with a gun. Though appellant contradicted himself in respect of his being in the company of the 1st accused who was armed with a gun, the burden still rested on the prosecution to prove the guilt of the appellant as required by law. See Aremu V The State (1984) 6 SC 85, 87 and Obade V The State (1991) 6 NWLR (Pt. 198) 430, 435 and 456.

The GSM handset that was allegedly stolen was not found in the possession of the appellant. Rather it was alleged to have been in the possession of the 1st accused person. So the doctrine of recent possession as codified in Section 167(a) of the Evidence Act, 2011, cannot be invoked against him.

I shall at this point return to the issue of the gun which was recovered from the 1st accused person as admitted by him. I must first mention that contrary to the holding of the trial Court, the 1st accused person did not deny that he was arrested with a gun. He was consistent both in his oral evidence and his extra – judicial statement that he was arrested with a gun in his possession. I do not however see how the error by the learned trial Judge negatively affected his mind. There is nothing in the judgment of His lordship to show such an impact on his mind. I shall therefore not engage in mind – reading as appellant’s counsel did in his submission.

1st accused offered an explanation about his being in possession of the gun, to wit; that as a result of clashes between Fulani herdsmen and Tivs and as a member of a vigilante group, he was given the gun by their chairman, Matthew Ajante, for the purpose of the protection of their community. His oral evidence and his extra – judicial statement to the police were consistent in this regard. The extra – judicial statement was made three days after his arrest. There is no evidence that the police investigated the statement which by their tendering Exhibit D became part of the case of the prosecution. The police did not even find out if there is any person called Mathew Ajante in the 1st accused’s community and if he gave the gun to him for vigilante duty. The 1st accused was not cross – examined on his story and so it was accepted as the truth by the prosecution. See Egba V The State supra. The story is also plausible especially since the PW1 and PW2 admitted the existence of the crisis.

In the light of what I have said so far, it is my view that the quality of the identification evidence offered by the prosecution was not good enough and it was unsafe, in fact, it was dangerous to convict on it. The learned trial Chief Judge, with all due respect, did not exercise the caution and engage in the careful examination prescribed inR V Turnbull supra. as approved inAbudu V The State supra. and several other cases. The failure of the prosecution to establish beyond reasonable doubt that the appellant was indeed the person who committed the offence of armed robbery disentitled the trial Court from convicting the appellant and this Court from affirming such erroneous conviction. See Ajayi V The State (2014) 14 NWLR (Pt. 1426) 1, 15.

Appellant’s counsel contended that an identification parade ought to have been conducted by the police. An identification parade is necessary where;
(a) the victim did not know the accused previously;
(b) the victim was confronted by the offender for a very short period of time;
(c) where the victim, due to time and circumstances, might not have had the opportunity to observe the features of the accused. See Ikemson V State (1989) 1 NWLR (Pt. 110) 455, Nwaturuocha V State (2011) 6 NWLR (Pt. 1242) 170 and Wisdom V The State (2017) 14 NWLR (Pt. 1586) 446.
Conversely, an identification parade is unnecessary when the suspect is caught at the scene of the crime or at a place closely connected with the scene of the crime. See Babarinde V State (2014) 3 NWLR (Pt. 1395) 568, 597. In this instance, the PW1 testified that the appellant and the 1st accused person were arrested at a stream but he was not present when the arrest was made and so his evidence on the place of their arrest was hearsay evidence which is inadmissible. The appellant testified that he was arrested in the house that he and the 1st accused person went to so as to avoid standing on the road with a rifle in his (1st accused person’s) hand. His evidence stood unchallenged as the villagers who arrested him were not called to testify. It cannot therefore be said that appellant was arrested at the scene of the crime or at a place closely connected to it.
All through the evidence of PW1 he did not say that he identified the appellant and his co – accused person to the villagers as two of the robbers who robbed him. All he said was that if the two accused persons were not arrested, he would not have been able to identify them. This is not the same thing as saying that he identified them to the villagers as those who robbed him. However in his extra – judicial statement to the police, the appellant said that the PW1 pointed at them as two of those who robbed him. I have already stated that the PW1 torpedoed his identification evidence by testifying that he would not have been able to identify the appellant and 1st accused if they had not been arrested. It would have been a charade or a farce to conduct an identification parade. This is because having seen the appellant and his co – accused with the Andema villagers who arrested them, the PW1 would have made up his mind before hand as to who to point to at the identification parade. An identification parade should not be conducted for purely cosmetic reasons or to fulfil all righteousness. I therefore do not agree with appellant’s counsel that an identification parade ought to have been conducted by the police. It follows therefore that the failure of the trial Court to make a pronouncement on the need for an identification parade did not occasion a miscarriage of justice.
It is my view, I say again, that it was unsafe to convict the appellant of the offence of armed robbery.

I now turn my attention to the offence of conspiracy. Conspiracy is the agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Ikemson V State supra. The fact that the substantive charge against an accused has not been proved will not automatically lead to an acquittal in respect of the count on conspiracy. This is because conspiracy is a separate offence from the substantive offence. See Agugua V State supra. and Oloye V The State (2018) 14 NWLR (Pt. 1640) 509.
At common law, proof of conspiracy is generally a matter of inference deducible from certain criminal acts of the parties accused done in pursuit of an apparent criminal purpose in common between them. This is because being hatched in secrecy in most instances, it is rarely proved by direct evidence. See Adepoju V The State (2018) 15 NWLR (Pt. 1641) 103 and Babarinde V The State (2014) 3 NWLR (Pt. 1395) 568. In this instance, there is no direct evidence of conspiracy. Evidence on record which I have already assessed in this judgment is not of such a quality that irresistibly compels the Court to make an inference of conspiracy. It was therefore not right for the trial Court to convict the appellant of the offence of conspiracy.
I therefore enter a negative answer to issue 2 and resolve it in favour of the appellant.

On the whole and in the light of my resolution of issue 2, I come to the conclusion that the appeal has merit and it is allowed. The judgment of the trial Court is hereby set aside. In its place I hereby discharge and acquit the appellant.

ADAMU JAURO, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother JOSEPH EYO EKANEM, JCA. I entirely agree with the reasoning and conclusion contained therein to the effect that the appeal is meritorious and ought to be allowed.
I adopt the said judgment as mine, in allowing the appeal. I abide by all consequential orders made.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed. The issues arising for determination have been comprehensively resolved, and, I adopt these resolutions as mine. I will only make few comments in support.

By virtue of the powers donated to an Attorney General of a State under Section 211(1)(a) and 211(2) of the 1999 Constitution, as amended, the prosecution powers of the Attorney General of a State may be exercised by officers under his office or indeed, by any counsel he so assigns by Fiat. In Amadi V. AG of Imo State (2017) LPELR-42013(SC), Peter-Odili, JSC, elucidated on the powers of a State Attorney General as donated by Section 211 of the 1999 Constitution, as amended, thus, at pages 27 – 28:
“Therefore, when such assignments or delegations take place, the office of the Attorney- General is taken as having performed its constitutional duty and it is not for anyone to go into minute details of which officer is holding forth on behalf of the Attorney General.
It is in the light of what has constitutionally provided for the Attorney- General of a State that the Attorney General can so delegate his Powers to officers of his Ministry to prosecute and defend matters in Court on his behalf, be it criminal or civil… Therefore the Courts take it for granted that if the Director of Public Prosecution has started prosecution, he has done so in accordance with the instruction given to him by the Attorney General and it is in that wise that any Officer can sign an information on behalf of the DPP.”
See also Christopher Awobotu v. The State (1976) LPELR-649(SC), M.U.O. Ezomo v. A.G. Bendel State (1986) 4 NWLR (PT.36) 448.
It is to be presumed by the Court, in the absence of any objection by the Attorney-General, that a Director of Public Prosecution or State Counsel who prefers a charge, is acting in accordance with the instruction the Attorney- General. Therefore, unless the argument is that the Attorney-General has disavowed the charge, a charge preferred by a Law Officer in the Chambers of the Attorney General, on his behalf, is not a nullity. The trial Court would be imbued with jurisdiction to try the same.

For the fuller reasons given in the lead Judgment. I also allow this appeal and abide by the orders made therein.

Appearances:

O. Okoro, Esq., with him, B.O. Anajeke, Esq. For Appellant(s)

I. Wombo, Esq. (Chief Legal Officer, Ministry of Justice, Benue State) For Respondent(s)