SUNDAY OGBIBO v. THE STATE (2019)

SUNDAY OGBIBO v. THE STATE

(2019)LCN/13363(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2019

CA/J/279CB/2017

RATIO

ARMED ROBBERY: ESSENTIAL INGREDIENTS TO PROVE THE OFFENCE OF ARMED ROBBERY
The question to be answered herein is whether the evidence adduced by the Prosecution at the trial Court can sustain the establishment of the ingredients of the offence of armed robbery which are: (a) That there was a robbery or series of robberies; (b) That the robbery or each robbery was on armed robbery; (c) That the accused took part in the armed robbery or robberies. See: STATE V. SANI (2018) LPELR – 43598 (SC); AYINDE V. THE STATE (2018) LPELR 44761 (SC); EBBA V. OGODO (1984) 1 SCNLR 372; SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586.PER UCHECHUKWU ONYEMENAM, J.C.A.

A CRIME MUST BE PROVED BEYOND REASONABLE DOUBT BOTH UNDER CRIMINAL AND CIVIL TRIALS

It is important to note the prescription under Section 135 of the Evidence Act on the Standard of Proof in criminal proceedings and it is thus: Section 135 1. If the commission of a crime by party to any proceeding 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 Section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.
3. If the prosecution proves the commission of the crime beyond reasonable doubt the burden of proving reasonable doubt is shifted to the defendant.
Expounding the above referred section, the apex Court in CHUKWUMA V. FRN (2011) 13 NWLR (PT. 1264) 391 AT PAGE 408; per Muhammad JSC (as he then was) at page 408, paras D – H held thus:
“The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process, the requirement of the Law is that the prosecution has the duty to prove all the essential elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during the proceedings before a trial Court comes to the conclusion that an offence had been committed by an accused person. The prosecution does not require a magic wand in order to attain to its proof to be beyond reasonable doubt.” All the prosecution is required to do simply is to put forward to the Court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence.” (Underlining mine).PER UCHECHUKWU ONYEMENAM, J.C.A.

WHEN THE ACCUSED PERSON FOR ARMED ROBBERY CANNOT BE IDENTIFIED
Emphasizing the yardstick on the standard of proof well set out in Law and as expatiated in the case of CHUKWUMA V. FRN (Supra); His Lordship Peter- Odili in STATE V. SANI (supra) stated that, where the victims of the crime by their evidence has difficulty with identifying the Appellant as one of the assailants on the night of robbery that linkage between the Appellant and the offence being absent it can be said that an essential element of the offence of armed robbery is missing which is fatal to the case of the prosecution. See: SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586 AT 614 – 615: ABOKOKUYANRO V. THE STATE (2016) LPELR – 40107 (SC); OSUAGWU V. THE STATE (2016) LPELR- 40836 (SC); STATE V. DANJUMA (1997) 5 NWLR (PT. 506) 512: FATOYINBO V. A.G. WESTERN NIGERIA (1966) WNLR 4; PEOPLE OF LAGOS STATE V. UMARU (2014) LPELR -22466 (SC). PER UCHECHUKWU ONYEMENAM, J.C.A.

EYE WITNESS EVIDENCE: WHAT THE COURT MUST CONSIDER BEFORE ACCEPTING AN EYE WITNESS EVIDENCE

To guard against cases of mistaken identity, before a Court can ascribe any value to the evidence of an eye-witness in identification of a criminal, the Court must carefully consider the following issues:
(1) circumstances in which the eye-witness saw the suspect or defendant.
(2) the length of time the witness saw the subject or defendant
(3) The lighting conditions
(4) The opportunity of close observation.
(5) The previous contacts between the two parties.
See: NDIDI V. STATE (2007) LPELR 1970 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

WHEN THE CASE OF AN ACCUSED IS DEPENDENT SOLELY ON THE CORRECTNESS OF HIS IDENTIFICATION, WHAT MUST BE COURT DO
Where the case of an accused person depends wholly or substantially on the correctness of his identification, a trial Judge must weigh the victims evidence on the identity of the accused with other evidence adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. See: R V. TURNBULL & ORS (1976) 3 A.E.R 549; IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455.PER UCHECHUKWU ONYEMENAM, J.C.A.

WHEN THERE IS CONTRADICTORY EVIDENCE GIVEN BY THE PROSECUTION
When as in this case the Prosecution gives contradictory evidence as to the complainant and the house that was allegedly robbed; then there is serious doubt as to whether there was any robbery at all. It was held in PAUL AMEH V. THE STATE (2018) LPELR 44463 (SC); that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole, therefore where pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See also: BOY MUKA V. THE STATE (1976) 10-11 SC 305.PER UCHECHUKWU ONYEMENAM, J.C.A.

A VOLUNTARY CONFESSIONAL STATEMENT MUST BE CONSISTENT WITH OTHER ASCERTAINED FACTS WHICH HAVE BEEN PROVED

In answer to this, it is important to state that a voluntary confessional statement though admissible against the person that made it and constitutes relevant fact against him, OFORDIKE V. STATE (2019) LPELR – 46411 (SC); NSOFOR V. STATE (2004) 18 NWLR (PT. 905) 292; must be consistent with other ascertained facts which has been proved, SHURUMO V. STATE (2010) LPELR – 3069 (SC); and the same must be direct, unmediated, positive, unequivocal, open-and-shut; to found conviction of an accused without corroboration, OJO V. STATE (2018) LPELR ? 44699 (SC); BABALOLA V. STATE (2017) LPELR 42365 (CA).PER UCHECHUKWU ONYEMENAM, J.C.A.

CRIMINAL LAW AND PROCEDURE: EFFECT OF THE PROSECUTION NOT PROVING ITS CASE BEYOND REASONABLE DOUBT
The failure of the prosecution to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See: ONWE V. STATE (2017) LPELR ? 42589 (SC); JUA V. THE STATE (2010) 4 NWLR (PT. 1184) 217 SC.PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

SUNDAY OGBIBO Appellant(s)

AND

THE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Yobe State, presided over by Ali Garba, J. sitting at Potiskum/Damaturu in which he convicted and sentenced the Accused Person – Sunday Ogbibo (now Appellant) to death by hanging until certified dead for the offence of armed robbery contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (special provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
?Dissatisfied with the said judgment, the Appellant herein with the other Accused Persons at the trial Court filed a joint Notice and Grounds of Appeal on 10th April, 2017. The referred joint Notice and Grounds of Appeal being irregular, by the order of this Court made on 27th June, 2018, the Appellant?s Amended Notice of Appeal dated 10th April, 2018 but filed 20th April, 2018 was deemed properly filed and served.

?The Appellant and his co-convict in Case No. YBS/DT/HC/28C/2008 on 26th July, 2008, pleaded not guilty to the charge and the case went to trial. The Prosecution called four witnesses who testified. There was trial within

trial to establish the voluntariness of the extra judicial statement of the Appellant. At the end of the trial within trial, the learned trial Judge found that the extra judicial statements of the Appellant and the co-convicts were made voluntarily. The extra judicial statement of the Appellant at the trial Court was admitted in evidence as Exhibit “C?, while Exhibit “D” is the statement of PW4 (the victim). The Prosecution thereafter closed its case and the Appellant was called upon to enter his Defence.

The trial Court adjourned the case for Defence to 14th July, 2014 but no record is available as to why Defence could not commence till 7th March, 2016. The Appellant testified without calling any witness. The case was adjourned for addresses and counsel addressed the Court orally on 20th April, 2016. The trial Court adjourned its judgment to 31st May, 2016 but eventually Judgment was not delivered till 14th February, 2017 wherein the Appellant was found guilty and accordingly convicted and sentenced to death by hanging until certified dead.
?
On 7th March, 2019 this appeal was heard. A. U. THEOPHILUS Esq. appeared for the Appellant while U.

ISMAILA Esq. Chief State Counsel Ministry Of Justice Yobe State appeared for the Respondent. Mr. Theophilus referred to the Appellant?s Amended Notice of Appeal filed 20th April, 2018 but deemed properly filed and served 27th June, 2018. By order of Court made 27th June, 2018 leave was granted the Appellant to rely on record transmitted in Appeal No. CA/J/279A/C/17. The learned counsel adopted the Appellant?s brief filed 27th July, 2018 in urging the Court to allow the appeal. Mr. Ismaila adopted Respondent?s brief filed 16th November, 2018 in urging the Court to dismiss the appeal.
?
In the Appellant?s brief, Mr. B.P. Ndam distilled 3 issues for the determination of the appeal. The issues are:
ISSUE 1: Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. “C? was voluntarily made?
ISSUE 2: Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to dead by hanging?
ISSUE 3: Whether the learned trial judge was in a position to properly recollect his impression

of those who testified before him and the evidence adduced during the trial in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment.

Mr. Saleh Dibbo Gadaka, of the Attorney General?s Chambers, Yobe State who prepared the Respondent?s brief adopted the issues for determination as formulated by the Appellant.

That being the case, I adopt the issues raised by the parties for the determination of this appeal. However I will resolve them in order of Issue 1, Issue 3 and Issue 2.

SUBMISSIONS ON ISSUE 1
?Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. “C? was voluntarily made?

Mr. Ndam submitted that the ruling of the trial Court delivered 19th December, 2011 overruling the objection of the Appellant’s counsel and admitting the extra judicial statement of the Appellant in evidence and marking same as Exhibit ?C? is wrongful. The learned counsel referred to the fact that the Prosecution sought to tender the statement of the Appellant but his counsel objected to

admitting same on ground of involuntariness. The trial Court ordered for trial-within-trial. He contended that the learned trial judge did not sign at the end of the trial-within-trial and the Court?s ruling delivered on 17th March, 2014 admitting the extra-judicial statement of the Appellant as Exhibit “C” did not state the reason why he considered Exhibit “C” to be voluntarily made.

He contended that the learned trial judge did not evaluate the evidence of witnesses particularly the evidence of DW1 at the trial within trial and this occasioned a miscarriage of justice to the Appellant. He noted that the trial Court observed the marks on the body of the DW1 and the fallen tooth which were proved as the evidence of torture of the Appellant by the Respondent to cause him to make Exhibit C.

Mr. Ndam urged the Court to hold that Exhibit C was not made voluntarily.

In opposing reaction, Mr. S. D. Gadaka who prepared the Respondent?s brief rehashed the evidence of the Prosecution in the trial within trial to urge the Court to hold that the Respondent as Prosecution proved beyond reasonable that Exhibit C was made voluntarily. He cited:

SAUNDERS V. ANGLIA BUILDING SOCIETY (1971) A-C ? 1004; EGBASE V. ORIAREGHAN (1985) LPELR -1030 (SC).

He submitted that even though at the end of Trial Within Trial there was no signature and date, this piece of fact have already formed part of the records and has not affected its content and so occasioned no miscarriage of justice and therefore urged the Court so hold that Exhibit “C” was made voluntarily and the ruling valid. He further submitted that the trial Court was not under any obligation to state reason(s) in his ruling for the conclusion it reached in admitting Exhibit “C” in trial within trial.
The learned counsel urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 1
In resolving this issue I will take off by determining the contention on the lack of signature and date at the end of the trial within trial at page 84 of the record. I have observed it to be correct that there is no indication by the Registrar of the trial Court that the learned trial Judge signed and dated its ruling. Quickly I will add that the ruling is part of the records of the proceedings of the trial Court compiled and

transmitted to this Court by the Registrar of the lower Court, the same is a certified true copy of the contents and by no means the original copies. In compiling the records the indication by the Registrar that the learned trial Judge signed at the end of each day?s proceedings or rulings etc. is important and necessary but failure to so do does not vitiate the particular proceedings or decision. The reason is as clearly spelt out by the apex Court in AHMED V. CBN (2013) 11 NWLR (PT. 1365) 352; (NO. 2) (2013) 5 6 SC. (PT. 1) 132 AT 160); where Onnoghen JSC (as he then was) at pages 373 – 374 paras G H stated thus:
?It is their contention that Exhibit F the certified true copy of the judgment of Justice Ariwoola JSC was not signed nor was it dated by His Lordship thereby rendering same void. This is unfortunate as Exhibit F is nothing but a certified true copy of the original judgment of His Lordship which was delivered on the 6th of March 2012. His Lordship is not expected to sign a certified true copy of his judgment in fact the practice is not for a certified true copy of a document to be signed at all. It is the certification by the

appropriate officer that makes the document authentic. And adding for good measure that: If applicants seriously contend that the judgment of His Lordship was not signed, the proper thing to do to establish that fact is to Exhibit the original copy of the judgment, not a certified true copy.”
See also: SANUSI & ORS. V. ISEKU & ORS. (2017) LPELR ? 43160 (SC). For this position of the Supreme Court, I hold that the ruling of the trial Court is valid.

On the state of the ruling delivered which did not adduce reasons for the conclusion arrived thereat; it is trite that there is no hard and fast Rule or set standard in the style of a Court?s decision. Every Judge has the freedom to use the peculiar method suitable for his purpose or which enables him perform his duty of judgment writing without undue stress. In doing that however a Judge must remind himself that the component of proper decision ought to be present and must equally show that the judgment is a fair, impassionate consideration of how the verdict came to be from his evaluation of the evidence put forth by the parties. See: MBANEFO V. MOLOKWU & ORS. (2014) LPELR

? 22257 (SC); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158; DURU V. NWOSU (1989) 4 NWLR (PT. 13) 24; CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317; N.B.C PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 408; SANUSI V. AMEYOGUN (1992) 4 NWLR (PT. 237) 527. The apex Court said in: DURU V. NWOSU (SUPRA) 24 AT 55 per Nnaemeka-Agu, JSC:
“This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years not only have definite parts of good judgment emerged although they remain usually unnamed, but in particular, there is now only one for evaluating of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reach a verdict and makes consequential orders.”
From these guides stated above as mirrored in the judicial authorities I have set out, the Appellant herein is correct that the ruling of the trial Court in the trial within trial is everything short of a good

ruling, but the Appellant was not able to show how he was prejudiced or how a miscarriage of justice was occasioned by the failure of the learned trial Judge to write an elegant ruling. While Judges are encouraged to write elegant judgments or rulings that shall contain definite parts of a good decision, I must state however that it is not every error in the style of judgment writing that would vitiate a judgment once what the Court had done met the minimum standard of a good judgment and nothing shows that a miscarriage of justice has occasioned, the peculiar style utilized by the judge notwithstanding. Having said that, I hold the ruling in question met the balance of Justice irrespective of the fact that it is not an embodiment of a good decision. See: UDE V. STATE (2016) LPELR ? 40441 (SC); ARIOPI V. STATE (1983); ADAMU V. STATE (1991) 6 SC. 17.

On this issue, the learned counsel for the Appellant also contended that the learned trial Judge did not properly evaluate the evidence of witnesses in the trial within trial particularly the evidence of DW1 before arriving at the conclusion that the extra judicial statement of the Appellant was

voluntarily made. In trying to prove that Exhibit “C” was made voluntarily a trial within trial was ordered by the trial Court and three (3) witnesses who were present when the Investigating Police Officer (PW3) in the main trial, recorded the statement of the Appellant all testified to the effect that the statement of the Appellant which was made in their presence was made voluntarily without duress, threat, promise or otherwise.
?
The evidence of the Prosecution in the trial within trial as garnered from the records is cogent and credible as to the manner and procedure the Appellant?s statement was recorded by the PW3 at the Police State CID?s interrogation room in the presence of other police officers and also how the statement was endorsed by a superior officer in both his presence and that of the Appellant herein. I am unable to fault the Prosecution?s evidence herein despite the lone evidence of the Appellant that he was threatened and tortured and beaten till his tooth fell off before he signed the statement he did not make. Finally, let me remark that I failed to see on the records where the learned trial Judge observed noticing

the marks on the body of the Appellant and his lost tooth as a result of the beating and torture meted on him to sign the Exhibit C.

In all therefore, I hold that the trial Court was right when it found that Exhibit C was made voluntarily.
I resolve issue 1 in favour of the Respondent.

SUBMISSIONS ON ISSUE 2
?Whether the learned trial judge was in a position to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment.

Mr. Ndam, the learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging as a result of lost of impression of those who testified before the learned trial Judge in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment and this occasioned a miscarriage of justice to the Appellant.
?
The learned counsel noted that hearing of the

case commenced on 3rd June, 2008 and evidence was concluded on 7th March, 2016. Written addresses were adopted on 20th March, 2016 and judgment was eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the adoption of the oral addresses contrary to the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Mr. Ndam invited the Court to observe that the record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel. He noted that, that was a period of nineteen months seven days to address the Court. He referred to the record of appeal at pages 101-109. The learned counsel submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment was delivered coupled with the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the learned trial Judge to properly recollect his impression of those who testified

before him and the evidence adduced during the trial in view of lapses of the above stated period of time and this seriously occasioned a miscarriage of justice to the Appellant; and the same offends Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which makes it mandatory for judgment to be delivered within three months from the date of final addresses.

He went further to highlight some instances of the effect of the delay on the appraisal of evidence by the trial Court to submit that from the errors highlighted, it is obvious that an objective and thorough appraisal of the issues of law and facts was not done thus occasioning a grave miscarriage of justice to the Appellant.

The learned counsel urged the Court to hold that the judgment of the trial Court is a nullity as same was delivered without jurisdiction having been delivered outside the constitutionally prescribed period. He cited: MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; J.C. LTD. V EZENWA (1996) 4 NWLR (PT. 443) 391.

He also quarrelled with the procedure adopted by the trial Court, to wit: oral addresses without formal written addresses. He

contended that this procedure is unknown to superior Courts of record in Nigeria. He submitted that the breach of the procedure of filing written addresses by counsel and the substitution of same with oral addresses is a dangerous precedent which robed the trial Court of its jurisdiction. He urged the Court to so hold and to resolve issue 2 in favour of the Appellant.

Mr. Gadaka in the Respondent?s brief submitted that the trial Court was properly in a position to recollect his impression of those who testified before it during the trial notwithstanding the lapse of time from the adoption of oral addresses to the delivery of judgement as the elapsed time in question was not much and so not fatal to the judgement since it did not occasioned a miscarriage of justice. He cited: INTERNATIONAL BANK OF WEST AFRICA V. FOLA SASEGBON (2007) 16 NWLR (PT. 1059) 195; SECTION 294 (1) OF 1999 CONSTITUTION.

He contended that the Appellant’s submission did not show any miscarriage of justice that adversely affected the Appellant. His reason that the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the trial judge to

properly recollect his impression of those who testified before him was a mere assumption. He further submitted that the delay made by the trial Court in delivering its judgement did not occasion miscarriage of justice as it gave reasons for the delay. He urged the Court to hold that the trial Court delivered its decision within its jurisdiction.

The learned counsel for the Respondent also submitted that PW2 Asp. Habu Mohammed told the trial Court that the investigation showed that the Appellant and 2 other convicts were in the house of one Alhaji Lawan Madugu on 20th August, 2008 and robbed his family of some money, jewelleries and cell phone and never stated that they robbed one Mohammed Nawaita as the Appellant submitted. He referred to page 84 lines 11-21 of the Records.

Again it was also the Respondent?s submission that the trial Court was right to have relied on the oral addresses of both the prosecution and defence to arrive at its judgement as there was no irregularity with the procedure as alleged by the Appellant. He argued that the trial Court had the right to even dispense with the oral addresses of parties and yet arrive at a just

and fair judgement once the facts are straight forward as are in the instance case. He submitted that it is a settled law that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain about the procedure on appeal. UWAEKWEGHINYA V. THE STATE (2005) LPELR- 3442 (SC).
The learned counsel finally urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 2
I would like to resume the resolution of this issue by addressing the contention of the Appellant?s counsel that the trial Court was robbed of its jurisdiction when it adopted the procedure which allowed for the counsel for the parties to make oral addresses at the close of evidence as against written addresses as required in superior Courts. There is no gainsaying that the procedure adopted by the trial Court was irregular but whether such irregularity robbed the trial Court of its jurisdiction is another issue. The state of the law is settled that addresses of counsel no matter how well written cannot take the place of evidence placed before the Court. This is to say that the Court cannot rely on

sound addresses of counsel to determine a case before him in that the essence of the final addresses of counsel at the close of evidence is to assist the Court by providing the Judge with a clear mental opinion to see through the facade and discover the hard core of the parties case. That is not to say that without written addresses a Judge cannot deliver a sound judgment as there are instances where the addresses of counsel are mere formalities in that they do not add value or strength to the parties? case. The irregularity herein does not touch on either the merit, justice or fair hearing of the case since counsel on both sides were given equal opportunity to make their final addresses orally. In the circumstance, the mere fact that a superior trial Court ordered oral final addresses as opposed to written addresses will not rob the said Court of its jurisdiction except it is shown that there was a miscarriage of justice. In the instant case, the Appellant did not in any way allude to the fact that there was injustice meted on him by reason of the oral final address which his counsel made. In the event that there was no miscarriage of justice as a

result of the irregularity of the trial Court adopting the procedure of oral final addresses as against written addresses, I hold that the trial Court was not robbed of its jurisdiction.

Relevant to the determination of the next dispute of this issue is principally the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria which provides:
Section 294 (1)
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof.”
Section 294 (5)
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
?The general interpretation given to the combined reading of Section 294 (1) and (5) of the Constitution of the Federal Republic of ?Nigeria is that, a Court?s decision cannot simply be

nullified for the fact that the decision was delivered outside the ninety day period allowed by the Constitution. The party seeking such nullification must forge ahead to state facts that will satisfy the appellate Court that he has suffered a miscarriage of justice by reason of the failure of the lower Court to deliver its decision within the time frame as provided by the Constitution. Where he so fails to establish a miscarriage of justice in the decision delivered, the appellate Court will not declare the judgment a nullity. The Courts have therefore placed more emphasis on the effect the failure to deliver judgment within the constitutional time frame has on the decision than the length of time it took the Court to deliver its decision outside the constitutional stipulated time. See: SAVANNAH BANK OF NIGERIA LTD. V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIG) LTD. (2012) 6 NWLR (PT. 1297) 487, KOLAWOLE INDUSTRIAL COMPANY LTD. V. ATTORNEY GENERAL, FEDERATION

(2012) 14 NWLR (PT. 1320) 221; PEOPLES DEMOCRATIC PARTY V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205; NNPC V. ZARIA & ANOR (2014) LPELR ? 22362 (CA).
Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final address is in recognition of the fact that human memory is circumscribed by time and space and loses its impressions or knowledge of persons, things, with the passage of time and such loss increases with time and pre-occupations. See: IFEZUE V. MBADUGHA (1984) 5 SC. 79. Where the delay in the delivery of judgment is unconscionable, undue, immoderate in that it exceeds reasonable limit, then, it will be beyond peradventure that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be seen to be justice according to law. There is no gain saying that what would amount to reasonable delay depends on the facts of each case.
In a more recent decision of the Supreme Court, the apex Court emphasized Section 294 (5),

stating that notwithstanding its decision in IFEZUE V. MBADUGHA (supra); delay alone will not lead to setting aside the judgment unless there is evidence of miscarriage of justice. See: AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR ? 22885 (SC); DALYOP V. MADALLA (2017) LPELR – 43349 (CA). In legion of authorities, the decision have echoed that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of evidence and written addresses; and the delivery of judgment, the emphasis is not simply on the length of time but on the effect it produced on the mind of the Court. Still in the said circumstance it remains the duty of the Appellant to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment. In AKOMA & ANOR. V. OSENWOKWU & ORS. (supra); the apex Court sounded that “In cases where the delay involves the judgment of a trial Court which is to hear and appraise witnesses, I will readily agree that

a delay of about 17 months after final addresses was so inordinate to affect the outcome of the proceedings. However, when it concerns an Appellate Court as in this case, I will be very slow to so declare because Appellate Courts’ functions are based on printed records only which involved the reading and appreciation of written briefs of argument and oral amplifications of such Briefs which are recorded by the justices. They cannot be said to have lost touch with the contents of the printed reviews placed before them such that it would affect their perception and evaluation of the Appeal which is based on printed records only. I think that this section applies more to trial Courts than Appellate Courts.?
The contention of the Appellant herein is duo in nature, which are, the prolonged trial and the untimely delivery of the judgment of the Court. From the records, the hearing of the case commenced on 3rd June, 2008 and evidence was concluded on 23rd June, 2014 that is about 6 years. Thereafter, the record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for oral addresses of counsel. That is to

say the oral addresses were made about 21 months after the close of evidence. Oral addresses were made on 20th March, 2016 and judgment eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the date of the oral addresses. The learned counsel for the Appellant submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment was delivered coupled with the prolonged trial from 3rd June, 2008 to 23rd June, 2014; had diminishing effect on the Judge?s perception and impressions of the witnesses who testified before him.
Emphasis must be placed here that Section 294(1) and (5) of the Constitution concerns itself with failure to deliver judgment within 90 days after conclusion of evidence and written addresses of counsel and the miscarriage of justice it occasions on the judgment delivered by the Court. Clear from Section 294 (1) of the Constitution is that the 90 days within which judgment must be delivered counts from the conclusion of evidence and written

addresses. Emphasis has always been wrongly placed on the fact that the 90 days counts solely from the date of written addresses of counsel.
Also, I want to remark that delay between the commencement of evidence and conclusion of evidence though not reckoned with by Section 294 (1) of the Constitution, has great effect on the distinct clear impressions and perceptions of the trial Court of the witnesses who testified, at the point of judgment delivery. It is no longer novel that the primary role of the trial Court is the evaluation of evidence based on the credibility and demeanour of the witnesses he had observed and watched as they gave evidence. For this reason and for the fact that the human brain and memory tend to lose facts observed and stored therein with loss of time, the trial Courts must of necessity manage the case flow in their Courts in such a way that once evidence is commenced on a matter, its conclusion should be within a reasonable time frame where the trial Judge would still be able to recollect the demeanour and credibility of the witnesses otherwise the inability of the human brain to retain facts for too long will sway the Judge to

miscarry justice. This is greatly the reason why the Constitution has placed the burden on the Courts to deliver their judgments 90 days after the conclusion of evidence and written addresses so that the Courts would still retain a clear picture of the credibility and demeanour of the witnesses who testified and who are referred to in the counsel?s addresses.
There is no controversy that the learned trial Judge violated Section 294 (1) of the Constitution, what remains to be examined is whether in the instant case, the Appellant proved any miscarriage of justice based on the said delay in accordance with the spirit of Section 294 (5) of the Constitution. To establish this, the learned counsel for the Appellant, Mr. Ndam contended that while PW1, PW3 and PW4 testified that it was Alhaji Lawal Madugu?s household that was robbed by the Appellant and his co-convicts; PW2 contradicted this by testifying that it was the household of one Alhaji Mohammed Nawaita in Damaturu that was robbed by unknown gun men. He noted that another instance where the trial judge lost perception and impressions of the evidence led and came to a wrong conclusion was with

the testimony of PW4. The alleged victim of the crime categorically made it clear in her testimony on oath during cross-examination that the accused persons were sitting at the back of a vehicle when the robbers struck. See page 89 of the record of appeal. This suggests that the Appellant and the co convicts may not have been the armed robbers who robbed PW4.
?Furthermore, from the records, the learned trial Judge in his judgment at pages 112 to 113 particularly his summary of the evidence of PW2 and PW4 from where he drew his impressions, perceptions and made his evaluations, missed material evidence of the witnesses which led to his wrongly arriving at the conclusion to convict the Appellant. At page 91 of the records, the PW2 one of the Investigating Police Officers under cross examination gave evidence that the complainant of the case was Alhaji Mohammed Nawaita in Damaturu whose house the Appellant and 2 others allegedly robbed as opposed to the evidence of the other Prosecution witnesses. The learned trial Judge did not evaluate such vital evidence nor address the issue of whose house if any there was robbery because he had lost touch of the evidence

that was placed before him owing to the undue delay in delivering his judgment after conclusion of evidence and addresses. PW4 in her evidence, particularly Exhibit D at page 20 and evidence on oath at pages 88 to 89 of the records respectively, stated that at about 2015hours and or between 7pm to 8pm respectively; unknown gunmen attacked them in the house and robbed them. In Exhibit D, she said they robbed her of her gold ear rings valued N14,000.00 and assaulted her and that she did not have money to give them. She further testified that she could recognize the person that collected her ear rings because ?he was giant among them all?. In her statement in Court she said it was her husband that made a report to the police as opposed to the evidence of PW2. She maintained that she had never seen the Appellant before the robbery. She added ?The robbers collected money from me. The accused (sic) were sitting at the back of the vehicle when the robbers struck I hold that the testimony of the PW4 (the alleged victim of the armed robbery) is contradictory in material particulars. Her testimony that the Accused persons were sitting at

the back of the vehicle when the robbers struck implies that the Accused persons were different from the armed robbers who robbed the victim.
The learned trial judge completely lost recollection of these important testimonies thereby losing the advantage of having heard the witnesses as a result of poor memory and loss of impressions of the trial and testimonies of the witnesses due to failure to deliver judgment within 90 days after conclusion of evidence and addresses which delay occasioned a miscarriage of justice to the Appellants. See:AKPAN V. UMOH (1999) 7 SC (PT. II) 13; ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR ? 20935 (SC).
I must note that even when they are good reasons for failure to abide Section 294 (1) of the Constitution, once it can be shown that the delay occasioned a miscarriage of justice, the decision would be declared a nullity. The delay of about 28 months from conclusion of evidence and addresses before judgment delivery is definitely an inordinate delay which obviously from the analysis made above affected the trial Judge?s perception, appreciation and evaluation of the evidence leading to loss of impressions

of the witnesses particularly PW2 and PW4 which occasioned a miscarriage of justice for which this Court must of necessity interfere to nullify the judgment. See: DIBIAMAKA V. OSAKWE (1989) 3 WLR (PT. 107) 101.
For all I have said above, I hold that the judgment of the trial Court delivered more than 90 days after conclusion of evidence and addresses which occasioned a miscarriage of justice is a nullity.
I therefore resolve issue 2 in favour of the Appellant.

Having come to this conclusion, I would have gone ahead to order a retrial but, this Court being an intermediary Court is enjoined to consider and resolve all issues distilled in an appeal. The apex Court has now firmed the position of the law that even where a law fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity has not been complied with, the Court of Appeal will not jump at the exercise of its discretion to order a retrial. Although it is its discretionary power, that power must be exercised judicially and judiciously, and not whimsically or capriciously. See: ONWE V. STATE (2017) LPELR ? 42589 (SC). IN ONWE V. STATE (supra); the

Court of Appeal only, in effect, considered whether the trial Court complied with Section 215 of the Criminal Procedure Law. Upon finding that Section 215 CPL was not complied with the Court of Appeal quashed the trial, conviction and sentence, and ordered fresh trial. The Court did not consider or resolve the first issue in the appeal suggesting that the evidence on which the Appellant was tried was full of material contradictions. The apex Court held that the order for retrial or fresh hearing made by the Court of Appeal was wrongly made as the Court of Appeal ought to have determined the appeal on its merit even after finding that the arraignment did not comply with Section 215 CPL. The position of the law therefore is that before the Court of Appeal can order fresh trial, it ought to consider whether the evidence at the trial High Court justify the order for fresh trial. In other words, the order for fresh trial is not automatic once the Court of Appeal holds that the trial Court did not comply with a law fundamental to criminal proceedings. The Court of Appeal therefore can only make an order for a retrial where after it has arrived at a conclusion that

the trial Court did not comply with a law fundamental to criminal proceedings and upon considering the record of proceedings as a whole satisfies itself that the evidence disclosed a substantial case for proper trial of the accused person. The rationale behind this position of the Supreme Court is that, the order for fresh trial in the face of evidence which prima facie cannot sustain conviction, is oppressive, preposterous and a travesty of Justice. See: GANIYU V. THE STATE (2013) LPELR-20334 (SC); EDACHE V. QUEEN (1962) 1 SCNLR 22; ADISA V. A.G. WESTERN NIGERIA (1965) 1 ALL NLR, 412; AND EWE V. THE STATE (1992) 6 NWLR (PT. 264) 147 AT 157.
In the instant appeal, issue 3 is not trivial. I have gone through the records and I view that it will better serve the interest of justice to determine the appeal on its merit than order a retrial at this point which I hold will occasion a greater miscarriage of justice. See: STATE V. MATHEW (2018) LPELR ? 43712 (SC). I shall therefore proceed to consider Issue No. 3.

SUBMISSIONS ON ISSUE 3
?Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable

doubt to warrant his conviction and sentence to death by hanging.”

Mr. Ndam learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging. He contended that the Prosecution did not prove the ingredients of the offence of armed robbery. He cited: ANI V. STATE (2001) 5 SC (PT. 1) 33; (2003) 11 NWLR (PT. 830 142 AT 161 PARAGRAPHS C-E. He noted that the offence was committed in Yobe State but the Appellants were arrested in Gombe State forty one clear days after the robbery. The learned counsel faulted the mode of identification of the Appellant by the victim and argued that the flaw made it impossible for the Respondent to link the Appellant with the crime. He relied on:ARCHIBONG V. THE STATE (2006) 14 NWLR (PT. 1000) 349 AT 371. The learned counsel noted that the Appellant was never at any point identified as one who committed the robbery. He referred to the evidence of the victim at page 87 of the records where she said she had never seen the Appellant before to contend that identification parade was necessary and that

failure of the Prosecution to have an identification parade to identify the Appellant was fatal to their case. He leaned on: IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455.

The learned counsel further submitted that the testimony of the PW4 the victim of the armed robbery is contradictory in material particular, he referred to page 89 of the records where she testified under cross-examination that the Accused persons were sitting at the back of the vehicle when the robbers struck and argued that by implication the Accused persons were different from the armed robbers who robbed the victim.

He urged the Court to resolve issue 3 in favour of the Appellant and to accordingly discharge and acquit the Appellant.

In opposition reaction, Mr. Gadaka of counsel to the Respondent submitted that the learned trial Judge was right to have held that the Respondent proved the offence as charged against the Appellant. He noted the ingredients of the offence and cited: AFOLALU V. THE STATE (2010) 16 NWLR (PT. 1220) 584. He rehashed the evidence of the Prosecution to submit that there was robbery which took place on 20th August, 2008 in the house of Alhaji Lawan

Madugu at Damaturu, Yobe State. He referred to: pages 63; 64; 84; 93; 96; 98; 99 and 101 of the records and Exhibit C the confessional statement of the Appellant.

The Respondent in his contention that the Appellant and others took part in the commission of the said robbery referred to the evidence of PW4 Adama Ma’azu a victim of the said robbery. PW1 Insp. Garba Musa testified that the Appellant made a confessional statement which he recorded. He also stated that identification parade was conducted and PW4 Adama Ma’azu identified the Appellant and his co convicts. The learned counsel submitted that where there is a proper identification as a result of the opportunity a witness had the Court can rely on that recognition and identification and convict the appellant. He cited: OLALEKAN V. THE STATE (2001) 18 NWLR (PT. 746) 793.

The learned counsel further relied on Exhibit “C” where the Appellant allegedly confessed to have robbed PW4.

He therefore urged the Court to resolve issue 3 in favour of the Respondent and to hold that the prosecution has proved the offence of armed robbery against the Appellant beyond reasonable doubt which warranted his

conviction and sentence by the trial Court.

RESOLUTION OF ISSUE 3
The question to be answered herein is whether the evidence adduced by the Prosecution at the trial Court can sustain the establishment of the ingredients of the offence of armed robbery which are: (a) That there was a robbery or series of robberies; (b) That the robbery or each robbery was on armed robbery; (c) That the accused took part in the armed robbery or robberies. See: STATE V. SANI (2018) LPELR – 43598 (SC); AYINDE V. THE STATE (2018) LPELR ? 44761 (SC); EBBA V. OGODO (1984) 1 SCNLR 372; SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586. It is important to note the prescription under Section 135 of the Evidence Act on the Standard of Proof in criminal proceedings and it is thus: Section 135 1. If the commission of a crime by party to any proceeding 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 Section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly

in issue in the action.
3. If the prosecution proves the commission of the crime beyond reasonable doubt the burden of proving reasonable doubt is shifted to the defendant.
Expounding the above referred section, the apex Court in CHUKWUMA V. FRN (2011) 13 NWLR (PT. 1264) 391 AT PAGE 408; per Muhammad JSC (as he then was) at page 408, paras D – H held thus:
“The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process, the requirement of the Law is that the prosecution has the duty to prove all the essential elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during the proceedings before a trial Court comes to the conclusion that an offence had been committed by an accused person. The prosecution does not require a magic wand in order to attain to its proof to be beyond reasonable doubt.” All the prosecution is required to do simply is to put forward to the Court evidence which is so strong, compelling and convincing against the accused such that it leaves

no reasonable man in doubt as to the probability of the accused person committing the alleged offence.” (Underlining mine).
Emphasizing the yardstick on the standard of proof well set out in Law and as expatiated in the case of CHUKWUMA V. FRN (Supra); His Lordship Peter- Odili in STATE V. SANI (supra) stated that, where the victims of the crime by their evidence has difficulty with identifying the Appellant as one of the assailants on the night of robbery that linkage between the Appellant and the offence being absent it can be said that an essential element of the offence of armed robbery is missing which is fatal to the case of the prosecution. See: SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586 AT 614 – 615: ABOKOKUYANRO V. THE STATE (2016) LPELR – 40107 (SC); OSUAGWU V. THE STATE (2016) LPELR- 40836 (SC); STATE V. DANJUMA (1997) 5 NWLR (PT. 506) 512: FATOYINBO V. A.G. WESTERN NIGERIA (1966) WNLR 4; PEOPLE OF LAGOS STATE V. UMARU (2014) LPELR -22466 (SC). In contesting that the Prosecution failed to prove its case against the Appellant, the learned counsel for the Appellant stemmed firmly on the fact that the PW4 the victim did not properly identify

the Appellant to link him up with the robbery. The Prosecution counsel made reference to the evidence of the PW4 on record and the fact that the PW4 in identification parade identified the Appellant as one of the robbers to urge the Court to uphold the conviction and sentence of the Appellant.
Identification evidence relates to the evidence which tends to show that the person charged for an offence is the same as the person who was seen committing the said offence. To guard against cases of mistaken identity, before a Court can ascribe any value to the evidence of an eye-witness in identification of a criminal, the Court must carefully consider the following issues:
(1) circumstances in which the eye-witness saw the suspect or defendant.
(2) the length of time the witness saw the subject or defendant
(3) The lighting conditions
(4) The opportunity of close observation.
(5) The previous contacts between the two parties.
See: NDIDI V. STATE (2007) LPELR ? 1970 (SC). The PW4 herein in her extra judicial statement at page 20 of the record said, ?I can identify the one that collected the set of gold Earings (sic)

? because he was giant among them all?. In her evidence under cross examination she said, ?I have never seen the accused person in my life. The robbers collected money from me. The accused (sic) were sitting at the back of the vehicle when the robbers struck.? The evidence of PW4 on the identity of the Appellant does not without reasonable doubt link the Appellant to the robbery. From her statement to the police the only person among the robbers she could identify was the one who collected her gold ear rings because he was bigger than the others yet she did not at any point give evidence that it was the Appellant that ?was the giant among them all? that collected her ear rings. She did not link the Appellant as either the ?giant among them all? or the robber that collected her ear rings. Again she said she had never seen the Appellant, and the accused persons the Appellant inclusive were sitting at the back of the vehicle when the robbers struck. The doubt raised by the evidence of PW4 is that the Appellant and the co convicts would have been different from the robbers that struck especially since through the

traverse of the Respondent?s evidence, it was not stated that the robbers who attacked the PW4 in her home came in a vehicle. The doubt further raised is, how did the PW4 identify the Appellant after about 41 days, since the only time she saw him was when he was sitting in the vehicle while she was in the house frightened at gun point? The Prosecution did not give evidence as to the light condition in the house where the victim was and in the vehicle where the Appellant and the other convicts were sitting. The PW4 and the entire Prosecution witnesses left the Court to grope as to how the PW4 was in a position to identify the Appellant in the given circumstance. I am in tune that for the prosecution, the PW1 said there was identification parade and the PW4 identified the Appellant and his co convicts as the robbers, but, the PW4 in her statement said the only person she could identify was the person that took her gold ear rings and did not in any where link the Appellant as the one she identified. It is contradictory therefore, for PW1 to say the PW4 identified the Appellant and the other 2 convicts as the robbers contrary to her statement made after the

arrest of the alleged robbers. Again there was no clue given as to the procedure of the identification parade referred to by PW1. Accordingly, considering the circumstances PW4 saw the Appellant if at all, lack of opportunity of close contact or observation of the Appellant, absence of previous contact with the Appellant; I find the weak evidence of PW4 (victim) poor in identifying the Appellant as one of the robbers, the same being capable of different meanings, the Appellant must be given the benefit of the doubt. See: UKPABI V. THE STATE (2004) LPELR ? 3346 (SC); ATTAH V. STATE (2010) LPELR ? 597 (SC).
Where the case of an accused person depends wholly or substantially on the correctness of his identification, a trial Judge must weigh the victim?s evidence on the identity of the accused with other evidence adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. See: R V. TURNBULL & ORS (1976) 3 A.E.R 549; IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455. From the records as I can gather, there is no other Prosecution evidence in support of the weak evidence of the victim on

the identity of the Appellant. The Respondent tried to lean on Exhibit C in support of the poor evidence of PW4 but Exhibit C is not a confession of the Appellant that he with others robbed PW4 and her household. In Exhibit C, the Appellant stated that one Kawu and Christian (1st accused person at trial) asked him and one Usman Garba to meet them in Damaturu prescisely at Yobe line bus stop by 7:30pm. When Christian and Kawu arrived, Kawu led them to an uncompleted road beside the mass transit and they began to trek in the dark because there was no light. That when they got to one house, Kawu asked them to wait outside and he entered into a flat in that house. He later came out with ear rings in his hand and told them there was no money there. He told the Appellant and Usman Garba to find their way back to Gombe where they came from. Exhibit C therefore does not support the PW4?s evidence on identification of the Appellant as one of the armed robbers that allegedly robbed the PW4’s household. All I can conclude here is that there is serious doubt as to the identity of the Appellant as one of the armed robbers that robbed the

PW4’s home.
There is also reasonable doubt as to the truthfulness of the alleged robbery. The doubtful scenario records that the alleged offence was committed on 20th August, 2008; the only victim who testified (PW4) made a statement to the police on 1st October, 2008 (Exhibit D) which is exactly 43 days after the alleged robbery incident and two days after the arrest of the Appellant. There is no record in the proof of evidence of the alleged complaint made to the police by Alhaji Lawan Madugu whose household was allegedly robbed and who the Prosecution witnesses said is the nominal complainant; he was not even called as a witness. The picture painted above also raises serious doubt as to whether there was robbery and which doubt must be resolved in favour of the Appellant.
Again from the Respondent’s evidence, there are contradictions on whose house the Appellant and the co convicts allegedly robbed. While the victim said the robbery took place on 20th August, 2008 in her house that is Alhaji Lawan Madugu at Damaturu, Yobe State; and that it was her husband Alhaji Lawan Madugu that was the complainant, the PW2 one of the Investigating

Police Officers said the robbery took place in the house of Alhaji Mohammed Nawaita in Damaturu who was the complainant. When as in this case the Prosecution gives contradictory evidence as to the complainant and the house that was allegedly robbed; then there is serious doubt as to whether there was any robbery at all. It was held in PAUL AMEH V. THE STATE (2018) LPELR 44463 (SC); that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole, therefore where pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See also: BOY MUKA V. THE STATE (1976) 10-11 SC 305. In the circumstance therefore I hold that the Respondent did not prove beyond reasonable doubt that there was robbery and that the accused took part in the robbery. The question that will arise therefrom, is the effect of Exhibit C on the case of the Prosecution.
?In answer to this, it is important to state that a voluntary

confessional statement though admissible against the person that made it and constitutes relevant fact against him, OFORDIKE V. STATE (2019) LPELR – 46411 (SC); NSOFOR V. STATE (2004) 18 NWLR (PT. 905) 292; must be consistent with other ascertained facts which has been proved, SHURUMO V. STATE (2010) LPELR – 3069 (SC); and the same must be direct, unmediated, positive, unequivocal, open-and-shut; to found conviction of an accused without corroboration, OJO V. STATE (2018) LPELR ? 44699 (SC); BABALOLA V. STATE (2017) LPELR ? 42365 (CA). Exhibit C herein is not unequivocal that the Appellant robbed the PW4?s household neither is it in any way supported by the evidence of the Prosecution particularly the evidence of the victim (PW4). Accordingly, Exhibit C alone cannot be relied upon to convict the Appellant. I therefore hold that the Prosecution did not prove the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to death by hanging.
I accordingly, resolve issue 3 in favour of the Appellant.
The failure of the prosecution to prove the guilt of the accused person beyond

reasonable doubt earns the accused an order of discharge and acquittal. See: ONWE V. STATE (2017) LPELR 42589 (SC); JUA V. THE STATE (2010) 4 NWLR (PT. 1184) 217 SC.

The appeal therefore succeeds and is hereby allowed. I quash the conviction and sentence of the Appellant by the High Court of Yobe State delivered on 14th February, 2017, in Case No. YBS/DT/HC/28C/2008. In its place, I enter the order of discharge and acquittal of the Appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion reached therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, J.C.A., and I am in agreement with him that the inordinate lapse of time between taking of evidence in the charge, the adoption of addresses and the judgment of the trial Court in this case was such that it cannot be said with any

degree of confidence that the trial judge did not lose his advantage of seeing witnesses testify and that appellant had a fair trial/hearing. At any rate, my learned brother has in his very meticulous review of the evidence shown that that inordinate lapse of time actually affected the trial judge’s appreciation of the evidence of the prosecution who had the burden to prove its case against the appellant beyond reasonable doubt. That threshold of proof beyond reasonable doubt, I also agree with my learned brother, the prosecution did not meet and the trial judge wrong in holding otherwise. In the event, I also allow the appeal, set aside the conviction of the appellant and in its place enter an order discharging and acquitting him of the offence of armed robbery for which the appellant was charged.

Appearances:

A. U. THEOPHILUSFor Appellant(s)

U. ISMAILA (CSC MOJ Yobe State)For Respondent(s)

Appearances

A. U. THEOPHILUSFor Appellant

AND

U. ISMAILA (CSC MOJ Yobe State)For Respondent