SAKA TUNDE v. THE STATE
(2019)LCN/12787(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/IB/131C/2018
RATIO
CRIMINAL LAW: INGREDIENTS TO PROVING ATTEMPT TO COMMIT ARMED ROBBERY
“Robbery therefore simply means stealing by the use or threat of violence. Armed robbery on the other hand means robbery while armed with offensive weapon. Thus, to succeed in proving attempt to commit armed robbery, the prosecution must lead sufficient credible evidence to establish the following facts beyond reasonable doubt:
(a) that there was an attempt to commit an offence;
(b) that the offence attempted is robbery;
(c) that the robbery was armed robbery; and
(d) that the accused was the person who attempted to commit the armed robbery or one of the persons who attempted to commit the armed robbery.” PER HARUNA SIMON TSAMMANI, J.C.A.
CRIMINAL LAW: WHETHER A CRIME CHARGED HAS BEEN PROVED BEYOND REASONABLE DOUBT
“The decision whether or not the crime charged has been proved beyond reasonable doubt, is not discretionary. In the evaluation of the evidence and deciding that the crime has been proved, the Court must act judicially and judiciously by considering all the essential elements that go to prove the offence charged. Once the evidence discloses that all the essential ingredients have been proved or established, the trial Court has no discretion in the matter. The only conclusion would be to make a finding of guilt. However, where any one of the essential elements of the offence is not established by the evidence adduced at the trial, the trial Court has a duty to acquit the accused person. See Smart v. State (2016) LPELR 40827 (SC); Oseni v. State (2012) 5 NWLR (pt.1293) 351; Akinlolu v. State (2015) LPELR 25986 (SC) and Jibrin v. FRN (2018 LPELR 43844 (SC).” PER HARUNA SIMON TSAMMANI, J.C.A.
CRIMINAL LAW: WHETHER THE PROSECUTION CAN BE DIRECTED TO THE NUMBER OF WITNESS TO CALL
“It is the law that the prosecution cannot be directed as to the number of witnesses to call, or whether to call a particular witnesses. However, it is also required by law that where there exists a vital point in issue and there are witnesses whose testimony would settle the issue one way or the other, such witness or witnesses ought to be called. Where the prosecution fail to call such a vital witness, the result may be fatal to the prosecution’s case. See State v. Azeez & Ors (2008) 3 FWLR (pt.432) 4567; Ibrahim v. State (2015) LPELR 40833 (SC); Ogudo v. State (2011) LPELR 860 (SC) and Sunday v. State (2014) LPELR 24415 (CA). See also Shurumo v. State (2010) 19 NWLR (pt.1226) 73.”
EVIDENCE: WAYS TO ESTABLISH EVIDENCE
“The prosecution may adduce evidence to establish the guilt of the accused by any of the following ways.
(a) By evidence of eye witness(es); or
(b) By the confessional statement of the accused; or (c) By circumstantial evidence which leads to the irresistible conclusion that accused is linked to the commission of the offence charged. The prosecution may therefore adduce evidence by any one or more of the methods listed above. See Ogedengbe v. State (2014) 12 NWLR (pt.1421) 338; Ude v. State (2016) LPELR 40441 (SC); Omoregie v. State (2017) LPELR 42466 (SC) and Ojo v. State (2018) LPELR 44699 (SC). Thus in Kamila v. State (2018) LPELR 43603 (SC)” PER HARUNA SIMON TSAMMANI, J.C.A.
INTERPRETATION: ATTEMPT TO COMMIT AN OFFENCE
“The phrase ‘attempt to commit an offence’ is in most cases difficult to define with precision. Generally ‘an attempt to commit an offence’ is used to describe the physical acts of an accused person which are proximate enough to the completion of the substantive offence. The act done is more than preparation to commit the offence, but must be accompanied by the intention which is evidenced by acts which if not stopped by an intervening factor, it may lead to the commission of the substantive offence. The law therefore requires that there are some overt acts which unequivocally and clearly manifest the intention but does not amount to completion of the substantive offence attempted. See Jegede v. State (2001) 14 NWLR (pt.733) 264; Reverend King v. State (2016) LPELR ? 40046 (SC); Okafor v. State (2016) LPELR- 26064 (SC) and Shurumo v. State (2010) 19 NWLR (pt.1226) 73. InEjegi v. C.O.P. (1977) 1 All N.L.R. 271.” PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
SAKA TUNDE Appellant(s)
AND
THE STATE Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Oyo State High Court holden at Ogbomoso in Charge No: HOG/7C/2016 delivered by O. S. Adeyemi, J on the 16th day of October, 2017.
The Appellant herein, was arraigned before the trial High Court for having committed the offence of attempted armed robbery which is an offence punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act, Cap. RII, Laws of the Federation of Nigeria, 2004. He was tried and convicted of attempting to rob one Hassan Adewale of his Bajaj Motorcycle at Sekengbede’s Compound, Ogbomoso in Oyo State. In proof of their case, the prosecution called two witnesses, to wit: Sergeant Oyerinde Babatunde and Hassan Adewale (Complainant) who testified as PW1 and PW2 respectively. Five documents were tendered and admitted in evidence as Exhibits ‘ST1’, ‘ST2’, ‘ST3’, ‘ST4’ and ‘ST5’ respectively. At the conclusion of the trial, respective counsel filed and Exchanged Written Addresses, and in a considered judgment delivered on the 16/10/2017, the learned trial Court convicted the Appellant and sentenced him to life imprisonment. Being aggrieved by the decision, the prisoner has filed this appeal.
The Notice of Appeal consisting of six (6) Grounds of Appeal was dated and filed on the 5/1/2018. Parties then filed and exchanged Briefs of Arguments as required by the rules of this Court. The Appellant’s Brief of Arguments was dated and filed on the 17/5/2018. From the six (6) Grounds of Appeal, the Appellant distilled three (3) issues for determination as follows:
1. Whether the iron rod admitted as Exhibit ST4 in the circumstances of this case ought to be expunged from the Record of Appeal when the evidence adduced in support of same is prejudicial, hearsay and occasioned a miscarriage of justice? [Ground 1].
2. Whether the prosecution has proved the charged of attempted armed robbery with iron rod against the Appellant beyond reasonable doubt as required by Section 139(1) & (2) of the Evidence Act, 2011 (as amended)? [Grounds 3, 4 and 6].
3. Whether the decision of the trial Court to limit herself (Sic) to the evidence of the victim of the alleged attempted robbery in view of the irrelevance of Exhibit ‘ST1’ and ‘ST2’ is prejudicial and occasioned a miscarriage of justice? [Ground 2].
The Respondent’s Brief of Arguments was dated and filed on the 7/6/2018. Therein, two issues were raised for determination as follows:
1. Whether the Lower Court was right when it admitted the Exhibit ‘ST4’ in evidence
2. Whether the Lower Court was right when it found that the prosecution has proved the case against the accused person beyond reasonable doubt in accordance with Section 138 of the Evidence Act.
Having carefully reflected on the issues as formulated by the parties, I propose to resolve this Appeal on the issues formulated by the Appellant. However, all the three issues shall be considered together.
Arguing the appeal, learned Counsel for the Appellant relied on the book; Criminal Trials (4th Ed.) by Y. H. Raw and R. Rao at p. 39 to contend that, the onus of proving the guilt of the accused person lies with the prosecution. That, the accused must be presumed to be innocent, unless and until his guilt is proved beyond reasonable doubt. That this burden does not shift but must be proved by relevant evidence beyond reasonable doubt. Learned Counsel went on to submit that, in the instant case, the prosecution failed to discharge that burden because the issue of iron rod tendered and admitted as Exhibit ‘ST4’ was in doubt and that same ought to have been expunged from the record. It was then contended that, the statement of PW1 relied on by the trial Court is hearsay because the First Investigating Police Officer was not called to testify as to how the iron rod was delivered to him and that he in turn delivered same to the PW1 who tendered it in evidence. Furthermore, that there was no Statement in writing made by the said Investigating Police Officer; and that the PW1 did not mention iron rod in his Extra-Judicial Statement admitted in evidence as Exhibit ‘ST5’ nor did he mention the name of the First Investigating Police Officer in the said Exhibit ‘ST5’.
Learned Counsel for the Appellant also submitted that, even though no objection was raised by Counsel when the iron rod was tendered, the learned trial Judge could expunge same as inadmissible at the time of writing the judgment. The case of Owonyin v. Omotosho (1961) NSCC 179 at 183 was then cited in urging us to resolve the doubt on issue of iron rod in favour of the Appellant.
Still on the issue of iron rod, which was extensively argued in issue one (1), learned counsel for the Appellant argued that the iron rod which the trial Court construed as ‘a weapon’ in convicting the Appellant to life imprisonment for committing the offence of attempt to commit armed robbery was not included in the list of Exhibits to be tendered at the trial in the proof of evidence as required by law. That iron rod was only included after prosecution had closed their case. That the prosecution only filed their application to amend the charge on 19/6/2017 and that same was granted on the 5/7/2017. Learned Counsel for the Appellant then contended that Section 36 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria stipulates that every person charged with a criminal offence shall be entitled to be given adequate time and facilities to prepare for his defence. It was then submitted that, the failure of the prosecution to bring incriminating evidence; i.e the iron rod to the attention of the defence contravened Section 36 (6) (b) of the 1999 Constitution (supra). The Indian cases of Doraiburu v. The State of Bihar (2007) CrL.J 1982 (Jhar) and Lakshmaman v. The State (2007) CrL.J 66 Mad ? DB were cited in support.
It was further submitted by learned counsel for the Appellant that, the failure of the Investigating Police Officer to draw the attention of the Appellant to Exhibit ‘ST4’ (iron rod) at the time of making his Extra-Judicial Statements is prejudicial to the Appellant, and therefore ought to have been disregarded. That, in the circumstances the tendering and admission of the iron rod as evidence amounts to hearsay. The case of F.R.N. v. Usman (2012) 3 M.J.S.C (pt.1) 25 at 43 was cited in support. That it is so because, the First Investigating Officer who was said to have brought the iron rod was never called to testify. Furthermore, the issue of iron rod was only introduced after the PW1 and Pw2 had concluded their testimonies in Court.
Learned Counsel for the Appellant went on to submit that the iron rod (Exhibit ‘ST4’) ought to have been expunged even though tendered and admitted without objection. The cases of Owonyin v. Omotosho (supra) at 189 and State v. Ogbubunjo (2001) 5 NSCQR 27 at 55 were then cited to submit that, inadmissible evidence is of no moment, even where it is wrongly admitted either by consent or without objection by either party. Furthermore, it is the law that, if inadmissible evidence had not been admitted the trial Court would have reached a different decision, such evidence would be disregarded. Learned Counsel then submitted that, in the instant case, the Appellant was convicted and sentenced to life imprisonment for the offence of attempted armed robbery by reason of the admission of the iron rod, which is an inadmissible piece of evidence. We were accordingly urged to expunge the iron rod from the record; and to allow the appeal and set aside the conviction and sentence passed on the Appellant.
In response, learned counsel for the Respondent relied also on Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 to contend that the Appellant was given adequate facilities and notice of the case against him. That, among the facilities is the charge itself, including the amended charge which listed the iron rod. Furthermore, that from the inception of the case, the charge mentioned iron rod as the weapon used by the Appellant to commit the offence. That in any case, the Extra-Judicial Statement of the victim of the offence (PW2) which formed part of the proof of evidence served on the Appellant before the commencement of trial mentioned the used of iron rod. In other words, that both PW1 and PW2 gave evidence of iron rod but Appellant’s Counsel failed to Cross-Examine on it. The cases of Daga v. Nanchang (2005) All FWLR (pt.240) 41 at 57 and Akaso v. State (1989) 2 SCNJ 183 were then cited to submit that the failure to Cross-Examine those witnesses on that piece of evidence amounts to admission of such evidence. We were accordingly urged to hold that the learned trial Judge was right when he admitted and acted on Exhibit ‘ST4’ as evidence.
Learned Counsel for the Respondent also cited the case of C.O.P v. Okoye (2012) 14 NWLR (pt.1320) 396 at 417 to submit that, the prosecution complied with the provision of Section 36 (6) (b) of the Constitution (supra) as the Appellant was duly served the proof of evidence. That the proof of evidence accompanying the Amended Charge listed the Iron rod on the list of Exhibits to be tendered. Learned Counsel for the Respondent also argued that the contention of the Appellant that failure of the Investigating Police Officer to put the incriminating material, i.e, the iron rod (Exh. ‘ST4’) to the attention of the Appellant for his comment in the course of making his Statement (Exhibits ‘ST1’ and ‘ST2’) vitiate the prosecution’s case, has no substance and is unknown to law. That, it is so because, a Police Officer cannot dictate to an accused person what to write or say. Learned Counsel for the Respondent then submitted that the Indian cases cited by the Appellant are not relevant to the facts of this case. That the issue in those cases was the failure of the prosecution to make available to the Defendant the Confessional Statement allegedly made to the police. That in the instance case, the issue is whether the Appellant was aware of Exhibit ‘ST4’ (the Iron rod). That the case of Laskshaman had to do with the failure of the prosecution to make available to the defence the statements of witnesses and exhibits.
On the contention of the Appellant that the tendering and admission of the Iron rod amounts to hearsay, learned counsel for the Respondent submitted that the Appellant’s argument is wrong in law. That, the argument of the Appellant is based on the fact the First Investigating Police Officer (IPO) who recovered exhibit ‘ST4’ (Iron rod) is not the one that tendered same. Citing Section 37 of the Evidence Act, 2011 and the cases of Isiekwe v. State (1999) 9 NWLR (pt.617) 43; Akpan v. State (1994) 8 NWLR (pt.361) 226; Vorgho v. The State (1972) NSCC 303 and FRN v. Usman (supra), learned counsel for the Respondent contended that those cases which deal with hearsay evidence do not have anything to do with Objects like Iron rod but with statements made in documents. That in the instant case, neither the First IPO nor PW1 is the maker of the iron rod.
While conceding that the prosecution had the onus of proving the guilt of the Appellant beyond reasonable doubt, learned counsel for the Respondent contended that, proof beyond reasonable doubt can be established by the testimony of an eye witness. The case of Umar v. State (2014) SCM 226 was cited in support. That in the instant case, the prosecution called two witnesses in proof of their case. That, the PW2 is the victim of the offence and gave account of the incident, which the trial Court found to be credible.
Learned Counsel for the Respondent went on to submit that, the trial Court, having listened to the witnesses held that the evidence of ‘PW2’ firmly and clearly proved that the Appellant was the one who attempted to rob him (PW2) of his Bajaj Motorcycle. That the identity of the Appellant was therefore not in doubt. Learned Counsel then cited the case of Ani & Anor v. The State (2009) 7 SCML at 11 to further submit that in the circumstances, all the elements of the offence charged were proved beyond reasonable doubt. That there was no doubt in the testimony of PW1 and PW2 with respect to the existence of the iron rod. We were accordingly urged to hold that the learned trial Judge dutifully performed his judicial role and rightly came to the conclusion that the prosecution proved the charge against the Appellant beyond reasonable doubt; and to dismiss the appeal.
Now, by Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, every person accused of having committed an offence is presumed to be innocent until he is proven to be guilty by a competent Court. This is a constitutional safeguard against arbitrary trial and persecution of citizens. The presumption of innocence guaranteed by the Constitution is therefore sacrosanct. That is why the law places the burden of proof on the prosecution, to prove the guilt of the accused person. By this presumption, the accused person has no business or burden to prove his innocence. In a criminal trial, the burden remains throughout on the prosecution and does not shift. To discharge the burden therefore, the prosecution must adduce credible evidence which must lead unequivocally to the guilt of the accused person beyond reasonable doubt. See Olomo v. State (2014) LPELR ? 22517 (CA); Afolalu v. State (2010) 16 NWLR (pt.1220) 584; Ajayi v. State (2013) 9 NWLR (pt.1360) 589 and C.O.P. v. Amuta (2017) LPELR ? 41386 (SC). See Section 131 and 132 of the Evidence Act. 2011.
As stated earlier, the burden cast on the prosecution is to prove the guilt of the accused person beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof to the hilt or beyond every shadow of doubt. As stated by Fabiyi, JSC in the case of Nwaturuocha v. State (2011) 6 NWLR (pt.1242) 170:-
‘Proof beyond reasonable doubt does not mean proof beyond all doubt; or shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.’
Similarly, Kekere-Ekun, JSC in the case of Dairo v. State (2017) LPELR 43724 (SC) explained the phrase ‘proof beyond reasonable doubt’ as follows:
‘It is settled law that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. It was held by this Court in Afolalu v. The State (2010) 16 NWLR (pt.1220) 584 that; ‘Proof beyond reasonable doubt’ means proof to moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the Defendant and so satisfies him as to leave no other reasonable conclusion possible
The decision whether or not the crime charged has been proved beyond reasonable doubt, is not discretionary. In the evaluation of the evidence and deciding that the crime has been proved, the Court must act judicially and judiciously by considering all the essential elements that go to prove the offence charged. Once the evidence discloses that all the essential ingredients have been proved or established, the trial Court has no discretion in the matter. The only conclusion would be to make a finding of guilt. However, where any one of the essential elements of the offence is not established by the evidence adduced at the trial, the trial Court has a duty to acquit the accused person. See Smart v. State (2016) LPELR 40827 (SC); Oseni v. State (2012) 5 NWLR (pt.1293) 351; Akinlolu v. State (2015) LPELR 25986 (SC) and Jibrin v. FRN (2018 LPELR 43844 (SC).
The prosecution may adduce evidence to establish the guilt of the accused by any of the following ways.
(a) By evidence of eye witness(es); or
(b) By the confessional statement of the accused; or
(c) By circumstantial evidence which leads to the irresistible conclusion that accused is linked to the commission of the offence charged.
The prosecution may therefore adduce evidence by any one or more of the methods listed above. See Ogedengbe v. State (2014) 12 NWLR (pt.1421) 338; Ude v. State (2016) LPELR 40441 (SC); Omoregie v. State (2017) LPELR 42466 (SC) and Ojo v. State (2018) LPELR 44699 (SC). Thus in Kamila v. State (2018) LPELR 43603 (SC); My Lord, Sannusi; JSC said:
Perhaps it is apt to commence the consideration of this issue by stating that, there are three modes of proof of criminal cases. These methods or modes of proof are: (a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s), (b) Through Confessional Statement voluntarily made by the accused. (c) Through circumstantial evidence which clearly point to the sole fact that the accused and no other person committed the offence charged
In the instant case, the Appellant was charged, tried and convicted for the offence of attempt to commit robbery while armed with an Iron rod. The offence is said to have been committed against one Hassan Adewale (PW2) on the 12th day of July, 2015 at Sekengbede Compound Ogbomoso. The Robbery and Firearms Act (supra) does not define what attempt to commit armed robbery is. To resolve the issue I shall resort to case law on the subject.
The phrase ‘attempt to commit an offence’ is in most cases difficult to define with precision. Generally ‘an attempt to commit an offence’ is used to describe the physical acts of an accused person which are proximate enough to the completion of the substantive offence. The act done is more than preparation to commit the offence, but must be accompanied by the intention which is evidenced by acts which if not stopped by an intervening factor, it may lead to the commission of the substantive offence. The law therefore requires that there are some overt acts which unequivocally and clearly manifest the intention but does not amount to completion of the substantive offence attempted. See Jegede v. State (2001) 14 NWLR (pt.733) 264; Reverend King v. State (2016) LPELR ? 40046 (SC); Okafor v. State (2016) LPELR- 26064 (SC) and Shurumo v. State (2010) 19 NWLR (pt.1226) 73. InEjegi v. C.O.P. (1977) 1 All N.L.R. 271, Bello, J.S.C (as he then was) said:
‘Section 4 of the Criminal Code of Western Nigeria defines ‘attempts to commit offences’ as follows: ?4, when a person intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent, he is said to attempt to commit the offence.’
In the instant case, the Appellant was convicted for attempt to commit armed robbery.
At this juncture, I find it necessary, before I proceed, to consider what is robbery. Section 15 of the Robbery and Firearms (Special Provisions) Act (supra) defines ‘robbery’ as follows:
‘robbery’ means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
Robbery therefore simply means stealing by the use or threat of violence. Armed robbery on the other hand means robbery while armed with offensive weapon. Thus, to succeed in proving attempt to commit armed robbery, the prosecution must lead sufficient credible evidence to establish the following facts beyond reasonable doubt:
(a) that there was an attempt to commit an offence;
(b) that the offence attempted is robbery;
(c) that the robbery was armed robbery; and
(d) that the accused was the person who attempted to commit the armed robbery or one of the persons who attempted to commit the armed robbery.
To succeed therefore the prosecution must establish by credible evidence all the above stated elements beyond reasonable doubt. Essentially, the prosecution must lead credible evidence to show the steps taken by the accused person immediately before the main act that would have resulted in the commission of the substantive offence; which is armed robbery. In other words the prosecution must lead evidence to show the last overt act of the accused person which is proximate to the commission of the offence attempted. See Afolabi v. State (2014) LPELR 22249 (CA); Ido v. State (2011) LPELR 9271 (CA); Ibrahim v. State (1995) 3 NWLR (pt.381) 35 at 45 – 46 and Osetola v. State (2012) 17 NWLR (pt.1329) 251. Thus, in the case of Sanusi v. The State (1993) 4 NWLR (pt.285) 99 at 199, it was held that:
It is the law that in every crime, there is an intention to commit it. Secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determination whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence.
Where evidence has been led in proof of the offence, it would be the duty of the trial Court to carefully and meticulously evaluate such evidence before it can arrive at a finding of guilt or innocence of the accused. Where the trial Court who saw and heard the witnesses has dutifully and correctly evaluated such evidence, the only duty of the appellate Court is to affirm such findings. The Appellate Court would not, in such a situation unnecessarily embark on a re-evaluation of the evidence merely because, if placed in the position of the trial Court, it would have come to a different conclusion.
However, the Appeal Court will interfere by re-evaluating the evidence adduced, both oral and documentary, in any of the following circumstances:
(a) where the trial Court ignored admissible evidence or made use of legally inadmissible evidence;
(b) where the findings of the trial Court are perverse or not based on the evidence before it;
(c) where the application of the law to the facts adduced are erroneous or evinced wrong understanding of the law;
(d) in any other circumstance where the decision of the trial Court has occasioned injustice.
In any of the above circumstances, the Appellate Court may interfere with the findings and conclusions of the trial Court. See Ogbechie v. Onochie & Ors (1988) 1 NWLR (pt.70) 370; Haruna v. A.G; Federation (2012) 9 NWLR (pt.1306) 419; State v. Gwangwan (2015) LPELR 24837 (SC) and Afolahan v. State (2017) LPELR ? 43825 (SC). Therefore, where the trial Court has satisfactorily performed its primary duty by correctly evaluating the evidence and apportioning probative value thereto, the Appellate Court will not interfere with its findings on the evidence adduced. In the instant case, the learned trial Judge made his findings on the evidence adduced at the trial from pages 30 – 37 of the Record of Appeal.
It is apparent from the judgment of the trial Court, that the learned trial Judge relied on the testimony of ‘PW2’ and the Exhibit ‘ST4’, which is the iron rod, to convict. The testimony of the said ‘PW2’, who was a victim of the offence charged is at pages 40 43 of the Record of Appeal. The testimony-in-chief of the said ‘PW2’ is as follows:
My name is Hassan Adewale. I live at Laka, Sekengbede’s Compound, Ogbomosho. I am an Okada rider. I know the accused in the dock.
I remember the 12th day of July, 2015 it was a Sunday, I took my motorcycle out and got back home around 10am. I was in the house and my wife said she could no longer see the motorcycle where it was parked. I looked out and the motorcycle was no longer out where I parked. As I looked up, I saw the accused person on my motorcycle and I shouted thief and he was arrested by some people. I held him and as I did so, he used a sharp object on me? It was from there we took him to the Special Anti-Robbery Squad Office. He was taken away in a car and my motorcycle was also taken to the police station
Under Cross-Examination, PW2 stated that his wife, Ayobami Adewale followed him to the Special Anti-Robbery Squad Office in Oyo but did not make any statement to the police.
It would be seen therefore that the prosecution relied on the testimony of PW2, who is said to be the victim of the offence charged. There is no Confessional Statement by the Appellant, as his Extra-Judicial Statement was discarded by the learned trial Judge as irrelevant. Specifically, the learned trial Judge found at page 31 lines 19 – 20 of the Record of Appeal as follows:
Having held that Exhibits ‘ST1’ and ‘ST2’ are irrelevant to this action, this Honourable Court is now left with the evidence of the victim of the alleged attempted robbery.
As I stated earlier, the learned trial Judge relied on the testimony of PW2, the victim of the offence to convict. It is correct, as rightly pointed out by the learned trial Judge, that a person can be convicted on the testimony of a single witness. Once the testimony of such single witness is concrete, credible and cogent, conviction can be based thereon. It is therefore clear to me that the Appellant could be convicted on the testimony of a single eye witness without the need for any corroborative evidence, once the testimony of such eye witness is credible and convincing without any reasonable doubt.
As found above, there is no law that require that the testimony of the PW2 to be corroborated before the trial Court could convict on it. In the instant case, corroboration is not required as a rule of law but I am of the view that to render such conviction especially in grave offences as this, corroboration is needed as a matter of practice. See Iko v. State (2001) 14 NWLR (pt.732) 221 at 241 – 242; State v. Azeez (2008) 14 NWLR (pt.1108) 439 and Ali v. State (2012) 7 NWLR (pt.1299) 209.7 Amodu v. State (2010) 2 NWLR (pt.1177) 47, Uwani Abba Aji, JCA (as he then was) said:
‘It is trite law that the prosecution need to call witnesses of its choice. It is under no constitutional or statutory duty to call a particular witness or witnesses. Although a conviction may be made on the evidence of a single witness, it is always safer that the trial Court warn itself of the danger of convicting on the uncorroborated evidence of such a witness. The essence of corroborative evidence is to give support or strength to the assertion of the prosecution. That is why as a matter of practice, a trial Court should be very slow to convict on the uncorroborated evidence of the prosecution
In the instant case, aside the testimony of the PW2 there is no other direct evidence linking the Appellant with the commission of the offence. The PW1 was not at the scene of crime, so cannot give any direct evidence of the facts leading to the arrest of the Appellant. Infact, he was not the first or original investigator.
The police Officer who first received the complaint and arrested the Appellant did not testify. The Pw2, the alleged victim of the alleged crime testified to the effect that his wife and his neighbours witnessed the incident and infact helped him to stop the Appellant from taking way the motorcycle. However, neither the wife nor any of his neighbours who assisted in arresting the Appellant was called to testify.
It is the law that the prosecution cannot be directed as to the number of witnesses to call, or whether to call a particular witnesses. However, it is also required by law that where there exists a vital point in issue and there are witnesses whose testimony would settle the issue one way or the other, such witness or witnesses ought to be called. Where the prosecution fail to call such a vital witness, the result may be fatal to the prosecution’s case. See State v. Azeez & Ors (2008) 3 FWLR (pt.432) 4567; Ibrahim v. State (2015) LPELR 40833 (SC); Ogudo v. State (2011) LPELR ? 860 (SC) and Sunday v. State (2014) LPELR 24415 (CA). See also Shurumo v. State (2010) 19 NWLR (pt.1226) 73 wherein Mukhtar, JSC said:
‘I think the most important thing is that in a criminal case, the prosecution must endeavor to prove its case beyond reasonable doubt with the vital and relevant evidence it can produce. What is vital evidence? An evidence that goes to the root of the ingredients and elements of an offence of which an accused person is charged.’
It therefore remains settled that, though the prosecution is not required to call a particular number of witnesses or particular witnesses, failure to call a vital witness may be fatal to the prosecution’s case.
In the instant case, the only relevant evidence called by the prosecution is the testimony of the PW2 who incidentally is alleged to be the victim of the alleged crime. Aside his testimony, there is no other piece of evidence linking the Appellant to the crime charged. The said PW2 told the Court that the whole incident happened in the presence of his wife and that his wife accompanied him to the Police Station. However, the wife never made a statement to the police nor was she called to testify. Furthermore, the Pw2 stated in his evidence in chief that the Appellant hit him on the hand with a ‘sharp object’ which gave him a cut. However, what was tendered by the prosecution was short iron rod. I have seen the iron rod. It is not a sharp object capable of inflicting a cut. It is a blunt object. It is obvious that what was tendered by the prosecution is a ‘blunt object’ and not a ‘sharp object.’
It should also be noted that the iron rod was tendered by PW1. PW1 did not recover the said iron rod (Exhibit ‘ST4’). The PW1 testified that the iron rod was handed over to him by the original investigating Police Officer (I.P.O). The said Original I.P.O. was never called to testify as to how and where the said Exhibit ?ST4? was recovered. The testimony of the PW1 on the recovery of the said exhibit is therefore hearsay. Consequently, his testimony and the recovery of the iron rod is inadmissible and should have been disregarded by the trial Court. Having thus found, it is my view that, considering the entire circumstance of this case, there is no sufficient evidence on record to establish the charge of attempt to commit armed robbery beyond reasonable doubt. The learned trial Judge therefore erred in convicting the Appellant thereon.
Having found as above, I am of the view that this Appeal has merit and is accordingly allowed. Consequently, the judgment of the Oyo State High Court holden at Ogbomoso delivered on the 16th day of October, 2017 in charge No: HOG/7C/2016 is hereby set aside. The Appellant is hereby acquitted and discharged. He should be released from prison custody forthwith.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the lead judgment in this appeal by my brother Haruna Simon Tsammani JCA.
There are several gaps in the evidence of the prosecution that make conviction improbable and where obtained, objectionable. For example, as the lead judgment revealed,
In the instant case, aside the testimony of the PW2 there is no other direct evidence linking the Appellant with the commission of the offence. The PW1 was not at the scene of crime, so cannot give any direct evidence of the facts leading to the arrest of the Appellant. Infact, he was not the first or original investigator. The police Officer who first received the complaint and arrested the Appellant did not testify. The PW2, the alleged victim of the alleged crime testified to the effect that his wife and his neighbours witnessed the incident and infact helped him to stop the Appellant from taking away the motorcycle. However, neither the wife nor any of his neighbours who assisted in arresting the Appellant was called to testify.
There was just not sufficient evidence, direct and cogent enough to convict the appellant as the trial judge did. Such finding and conviction by the lower Court must not stand. It must be set aside.
I therefore agree with the lead judgment and abide by the orders made therein.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned brother Haruna Simon Tsammani JCA, just delivered. I am in full agreement with his reasoning and conclusion that this appeal be allowed, my learned brother has thoroughly dealt with the issues canvassed.
It is settled law that the evidence of a single witness if believed by the Court can establish a criminal case even if it is a murder charge. See Sunday Effiong v. State (1998) 8 NWLR (pt. 562) 362 and Onafowokan v. State (1987) 3 NWLR (pt. 61) 538.
In this instant case, the only relevant evidence called by the prosecution is the testimony of PW2 who is the victim of the alleged Crime. Aside his testimony, there is no other evidence linking the Appellant to the alleged crime.
An Appellate Court will disregard the finding of a trial Court when the evidence in support of that finding does not show that degree of certainty which should be the criterion in a criminal trial.
I agree with my learned brother that there is no sufficient evidence on record to establish the charge of attempt to commit armed robbery beyond reasonable doubt. This appeal has merit and it is allowed.
I abide with the consequential orders made in the lead Judgment.
Appearances:
K. A. Ogunjimi, Esq. with him, M. A. Yekeen, Esq.For Appellant(s)
I. O. Abdul-Azeez, Esq. (Asst. D.P.P. Oyo State, Ministry of Justice)For Respondent(s)
