MICHAEL v. STATE (2021)

MICHAEL v. STATE

(2021)LCN/15121(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/A/321C2/2013

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALAO MICHAEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE DISTINCTION BETWEEN BURDEN OF PROOF AND STANDARD OF PROOF IN CRIMINAL CASES

It is well established and settled principle of our criminal Law that the burden of proof in criminal cases lies squarely on the shoulders of the prosecution. This burden does not shift at all. This means that the prosecution must prove all the ingredients of the offence the accused is charged with. In Akeem vs The State (2017) 18 NWLR (pt 1697) 311, the apex Court held: “Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola v The State (2005) 5 SC (Pt. 1) 135. In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This, it can do by direct evidence or circumstantial evidence or confessional statement.” In this respect, the accused has nothing to prove as the accused is presumed innocent in Law. The accused is not in Law expected to prove his innocence. This means therefore that even if the accused lies in his evidence, it is of no moment as that does not take away the burden on the prosecution to prove his case against the accused. This is the position of the Supreme Court in Orisa vs State (2018) 11 NWLR (pt 1613) 453, when the Court held: “The fact that an accused person told lies to wriggle out of trouble would show that he is a liar, but that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilt of the accused person beyond reasonable doubt.” There is a difference between the burden of proof and the standard of proof. The burden relates to who must prove what to establish a case while the standard of proof on the other hand deals with what kind of evidence must be proved by the prosecution that will satisfy the Law to secure conviction of the accused. The standard of proof in criminal cases is different from the standard in civil cases. In civil cases, the standard is on the balance of probability. In such a case, the Court will create an imaginary scale of justice, the party whose evidence tilt the scale in its favour no matter how slight will secure the decision of the Court in his favour. This is as simple as that. The position is not so in criminal cases. The standard of proof required in criminal cases to secure conviction is beyond reasonable doubt. The evidence required here is deeper than in civil cases. This is understandable because what is at skate in both civil and criminal cases are not the same. In civil cases what is more at skate is the rights of parties mostly on properties and damages are most a time adequate. That is to say compensation is mostly the outcome of civil cases. In criminal cases, on conviction, the accused is deprived his liberty of moving around as he will be made to serve term in prison. To deprive a person the fundamental right of freedom of movement and to restrict such right, the evidence must be more than balance of probability. This is why the standard required in criminal case is beyond reasonable doubt. See Sule vs State (2017) LPELR- 47016 (SC). PER EBIOWEI TOBI, J.C.A.

MEANING OF THE PHRASE “PROOF BEYOND REASONABLE DOUBT”

In Maba vs The State (2020) LPELR-52017 (SC), the apex Court held in this wise: “The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See …Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that: Proof beyond reasonable doubt does not mean proof beyond all doubt or all 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. at 186 E-G (supra): It is not proof beyond all iota of doubt. One thing certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit. In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 – 7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187, it was held 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. See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.” One more case in this regard will not harm anyone but for completeness I will mention the case of Afuape vs State (2020) 17 NWLR (pt 1754) 381 where the Supreme Court held thus with regard to proof beyond reasonable doubt in these words: “Proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of doubt …To prove a case beyond reasonable doubt, there must be a degree of compulsion that is consistent with a high degree of probability. In other words, if the evidence against the accused is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable,” the case would have been proved beyond reasonable doubt. [Bakare v. State (1987) 1 NWLR (Pt. 52) 579; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501 referred to].” The requirement to prove the case beyond reasonable doubt does not extend to proof beyond all reasonable doubt as no matter how water tight the case of the prosecution could be, the evidence may not be consistent all the way in all aspect. Indeed, getting perfection in human endeavors is almost impossibility. This is why the Law does not require proof beyond all reasonable doubt. All the Law requires is that, should the evidence establish all the ingredients of the offence against the accused with very high probability in such a way that a reasonable man will draw the conclusion that the case against the accused is proved, then it would have been said that the case has been proved beyond reasonable doubt. The evidence before the Court which could be by oral or documentary evidence must establish all the ingredients of the offence the accused is charged with in such a way that leaves a reasonable man in no doubt that the accused committed the offence. If there is any doubt, such doubt must relate to the ingredient of the offence otherwise such doubt will be termed fanciful doubt which will not affect the case of the prosecution and possible conviction of the accused. This much the Supreme Court brought out in Jiya vs State (2020) 13 NWLR (pt 1740) 159 when the Court held: “Proof beyond reasonable doubt” is not proof beyond a shadow of doubt or prove to a mathematical certainty. A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the minds about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reasons. Thus, to require proof beyond every shadow of doubt would mean that no criminal defendant will ever be convicted, for proof to a scientific certainty cannot be attained in human affairs with many variables at play.” PER EBIOWEI TOBI, J.C.A.

POSITION OF THE LAW REGARDING CONTRADICTIONS AND INCONSISTENCIES IN THE CASE OF THE PROSECUTION THAT WILL AFFECT THE CONVICTION OF THE ACCUSED

It is important to state further that even if there are contradictions and inconsistencies in the case of the prosecution, an appellate Court will not on that ground alone quash the conviction of an accused. For such conviction to be quashed based on contradiction and inconsistencies, such contradiction and inconsistencies must be material, that is to say it must relate to the ingredients of the offence which will create doubt as to the guilt of the accused. See Musa vs The State (2009) 6-7 S.C. 34; Asuquo vs The State (2016) 14 NWLR (pt 1532) 309; The State vs Ahmed (2020) LPELR-49497 (SC). The point I am making here is that for any doubt to affect the conviction of the accused, such doubt must relate to any of the ingredients of the offence in such a way that a reasonable person will not be convinced that the accused committed the offence. I make bold to say this because, one major ingredient that the prosecution must prove is that the accused actually committed the offence. It will amount to no work done should the prosecution prove all the ingredients of an offence without connecting the accused to the offence. The connecting of the accused to the offence is a key element for the conviction of the accused. It is not enough to give all the evidence that an offence was committed but the prosecution must go further to show that the offence was committed by the accused. Failure to connect the accused to the offence will render the conviction improper and it can be set aside. See State vs Yahaya (2019) LPELR-47611 (SC). One of the duties of the counsel to an accused is to apply all the skills of cross examination to establish material doubts in the case of the prosecution as it relates to the ingredients of the offence. When such material doubts are established, the Court will resolve such doubts in favour of the accused and the result of that is to find the accused not guilty. If such doubt exist but the lower Court is unable to find the accused not guilty, an appellate Court can set aside the conviction by discharging and acquitting the accused. PER EBIOWEI TOBI, J.C.A.

POSITION OF THE LAW REGARDING THE EFFECT OF THE FAILURE OF AN EYE WITNESS TO MENTION THE NAME OF THE ACCUSED OR GIVE A DESCRIPTION TO THE POLICE AT THE EARLIEST OPPORTUNITY AS ONE OF THOSE HE SAW COMMITTING THE OFFENCE, ESPECIALLY WHERE THE WITNESS CLAIMS TO HAVE KNOWN THE ACCUSED PERSON PRIOR TO THE OCCURRENCE OF THE INCIDENT

I will look at a few cases on this point. The Appellant’s counsel cited Ani vs State(supra) and Abdullahi vs The State(supra). I will add to this list the following cases; Abudu vs State (1985) 1 NWLR (pt 1) 85; Onuoha & Ors vs The State(1989) 2 NWLR (pt 101) 23; Udeh vs State (1999) LPELR-3292 (SC); Isah vs State (2008) 18 NWLR (pt 1119) 285; Idemudia vs The State (2015) 6-7 S.C. (pt II) 70; Okiemute vs State (2016) 7 S.C. (pt III) 1. In Idemudia vs State (2015) 17 NWLR (pt 1488) 375, the apex Court held: “The principle of Law as laid down and which must guide a Court faced with the evidence of a witness fixing an accused person at the scene of crime is settled that, such a witness must have mentioned the name of the accused person or given a description to the police at the earliest opportunity time, especially where the witness claims to have known the accused person prior to the occurrence of the incident. In other words, where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a Court must be cautious in accepting his evidence later and implicating the person or persons charged, unless a satisfactory explanation is given. The reason is obvious because such delay is likely to expose to question the evidence of identity and thereby raising uncertainty as to its acceptability and probative value. See the cases of Abudu v. State (1985) 1 NWLR page 55, also Abdullahi v. State (2008) All FWLR (Pt. 432) p.1047 at 1057.” Similarly in Okiemute vs State (2016) 15 NWLR (pt 1535) 297, the Supreme Court held: “It was held by this Court in Bozin V. The State (1985) 2 NWLR (pt. 8) 465 that the importance of the eye witness acting promptly in identifications cannot be over-emphasized. It was stressed that where such witnesses are not prompt to volunteer evidence on the identity of the accused, any such evidence thereafter should be accepted with caution. Also, in COP V. Alao (1959) 10 NLR 39 at 40 , it was held that when an eye witness omits to mention at the earliest opportunity the names of persons whom he said he saw committing the offence, a Court must be careful in accept in his evidence given later and implicating the persons charged, unless a satisfactory explanation is given.” Finally on this point I refer to Abudu vs The State (1985) 1 NWLR (pt 1) 55, which is earlier in time and is like the locus classics on this position of the Law on this point. In that case, the apex Court held thus: “….it is settled Law that where an eye witness (and in the instant case P.W. 1) omits to mention at the earliest opportunity the name or names of the person or persons whom she saw committing the offence, a Court must be careful in accepting her evidence given later and implicating the persons charged, unless a satisfactory explanation is given. See Commissioner of Police v. Tijani Alao & Others (1959) W.R.N.L.R. 39”. I agree with this statement of the Law.” The general position in my view from the above cases is that it will be unsafe to convict an accused based on the evidence of a victim or eye witness who claimed that he knew the accused before the incident of the offence which fact he did not state at the earliest opportunity when the facts were fresh in his mind at the point he was making his statement to the police. This is particularly so, when in the instant case no evidence was led to explain the omission when the witness was testifying in Court. In my opinion, this is not a casual issue. The evidence of a victim of a crime which does not mention the name of the person who robbed him which he claims he knew before then at the time he was making statement to the police will be suspect if he now mention the name during trial. Why should a victim of a crime when things are fresh in his mind while making statement to the police will remember all other issues in relation to the offence and refuse or neglect to mention the name of the person whom he knew before the incident to the police. If there was explanation before the Court for the omission, it would have been sufficient but no such explanation was given during trial when the PW1 & PW2 were testifying. This in my opinion does not add up. PER EBIOWEI TOBI, J.C.A.

POSITION OF THE LAW REGARDING WHEN IDENTIFICATION PARADE IS NECESSARY

It is true that identification parade is not necessary in all cases especially when the accused was arrested at the scene of the crime or shortly thereafter. As to when identification parade will or will not be necessary the Supreme Court in Maba vs The State (supra) held thus: “While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognize the suspect or where his identity is in dispute. See: Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3 NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122; Ogoala v The State (supra); Okiemute v. The State (2016) 15 NWLR (Pt. 1535) 297; (2016) LPELR – 40639 (SC). The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where: (a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime; (b) The witness knew the accused previously; (c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and (d) The accused in his confessional statement identified himself with the crime. On the other hand, an identification parade would be necessary where: (a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence; (b) The victim or witness was confronted by the offender for a very short time; or (c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused. See: Okiemute v. The State (supra).” Similarly in Opeke vs State (2021) 1 NWLR (pt 1758) 570, the Supreme Court held: “Identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender. In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect. There are many cases where an identification parade is of no use whatsoever in the scheme of things; such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is, indeed, the person that committed the crime. In the instant case, there was enough evidence to identify the appellant as one of the armed robbers, who attacked and robbed PW1 and PW2 that night, therefore, an identification parade was uncalled for. [Alufohai v. State (2015) 3 NWLR (Pt. 1445) 172; Jua v. State (2010) 4 NWLR (Pt. 1184) 217; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Eyisi v. State (2000) 15 NWLR (Pt.691) 555 referred to.] (P. 599, paras. C-G).” PER EBIOWEI TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kogi State High Court Holden at Ebogogo in Suit NO: HCEB/09C/2011 wherein the Appellant along with three other accused persons were convicted for Conspiracy and armed robbery punishable under Section 97(1) and 298 (c) of the Penal Code. His lordship consequent upon the conviction of the Appellant in pages 328-329 of the record sentenced the Appellant, 1st Accused in the lower Court to 2 years imprisonment and fine of N5,000 for the offence of conspiracy. For the two heads of the offence of robbery and armed robbery, the lower Court sentenced the Appellant along with the other accused person whose cases are not on appeal before me to 7 years imprisonment with a fine of N10,000 for counts 2 and 3. The lower Court went on to hold that should the Appellant fail to pay the fine for the offence of Conspiracy, he will spend one year in addition to the term of imprisonment of 2 years for that count and for the fine for robbery and armed robbery, the term of imprisonment to be added will be two years. The total punishment for the Appellant therefore by the decision of

the lower Court is a total of 15 years and N15,000 fine. If the fine is not paid, it shall be a total of 20 years excluding time already spent. It is this decision that the Appellant is not happy about upon which this appeal is predicated.

The notice of appeal has 6 grounds found on pages 330-333 of the records. For completeness, I will reproduce the grounds of appeal bereft of the particulars as follows:
1. The learned trial judge erred in Law in holding that the prosecution had proved the offences of conspiracy and armed robbery against the appellant in this case.
2. The learned trial judge erred in Law in holding that the prosecution had proved its case against the appellant beyond reasonable ground when in real fact, the prosecution did not prove its case against the appellant.
3. The learned trial judge erred in Law in holding that:
“I hold the considered view that the evidence of PW1 that he recognized the 1st, 2nd, and 4th accused persons was not contradicted under cross-examination, it is the Law that an un-contradicted evidence is deemed to have established the fact stated and that the Court can act on the

same…”
4. The learned trial judge erred in Law in holding that the Law is that where a victim of a crime fails at the earliest opportunity to mention the name of the accused as the person who robbed him, the Court should take caution in convicting the accused person.
5. The decision of the learned trial judge was unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial.
6. The learned trial judge erred in Law in holding that:
“It is common knowledge that the incident of armed robbery creates a situation of panic for a victim to remember every minute detail about his assailant(s). It is therefore my considered opinion that the non-mention of the names of the accused persons in the circumstances where they were clearly identified at the scene of crime in an operation that lasted for more than 3 hours will not devalue the weight to be attached to their evidence”.

The Appellant’s brief filed on 10/4/17 deemed on 18/2/21 was settled by M.Y. Abdullahi Esq. The said brief was argued on 18/2/21. The Appellant in the said brief raised 2 issues for determination to

wit:
1. Whether upon a careful consideration of the totality of evidence adduced at trial, the learned trial judge was not wrong in Law to hold that the prosecution had proved its case against the appellant beyond reasonable doubt?
2. Whether or not the trial Court was just and correct to have placed a minimal standard of proof on the prosecution, whereas, the Law requires proof beyond reasonable doubt on grounds that the liberty of the appellant is at stake?

The Respondent’s brief filed on 16/3/18 but deemed on 18/2/21 was settled by Ruth Alolo Alfa Esq of the Ministry of Justice, Kogi State. Learned counsel for the State formulated 3 issues for determination to wit:
1. Whether from the totality of the evidence adduced at the trial Court, the prosecution has proved the case against the appellant beyond reasonable doubt as required by Law – distilled from grounds 1, 2, 3, and 4 in the transmitted record of appeal.
2. Whether the appellant was sufficiently described and fixed at the scene of the crime to warrant his conviction. Distilled from ground 4, 5 and 6 of the appellant’s notice and grounds of appeal, in the

transmitted record of appeal.
3. Whether or not the trial judge properly evaluated the evidence before arriving at the verdict of conviction.

I will now take an overview of the arguments as contained in the briefs which were adopted as the arguments of counsel. I will start naturally with the Appellant’s brief and in doing so I will start with issue 1. I will reproduce the issue again here for clarity:
Whether upon a careful consideration of the totality of evidence adduced at trial, the learned trial judge was not wrong in Law to hold that the prosecution had proved its case against the appellant beyond reasonable doubt?

In addressing issue 1, counsel answered the question in the negative and submitted that the lower Court should not have convicted the Appellant based on the evidence of PW1 & PW2 which cannot qualify as proof beyond reasonable doubt as there are inconsistencies in the evidence of the victims which should create doubt in the mind of the Court which should have been resolved in favour of the Accused. Learned counsel citedBuhari & Anor vs Obansanjo & Ors (2005) 9 SCM 1; Audu vs State (2016) 1 NWLR (pt

1494) 557 @ 564. Learned counsel to the Appellant submitted vehemently that for the prosecution to secure conviction in a criminal case, it must connect or link the accused to the crime. In this instant case, counsel submitted that the Respondent failed to do that through the evidence of PW1, PW2 & PW3 who claimed that they knew the Appellant prior to the commission of the offence when they failed to mention the name of the Appellant to the police when they made their statements. The delayed evidence of the PW1 & PW2 linking the Appellant to the offence should not be believed as it amounts to afterthought counsel submitted, relying on Ani vs State (2009) ALL FWLR (pt 482) 1004 @ 1047; Abdullahi vs State (2008) MJSC 127 @ 135.

A Court in carrying out its main duty of evaluation of the evidence before it cannot just pick and choose the evidence to be assessed and evaluated, counsel submitted referring to Chief Falade Onisaodu & Anor vs Chief Asunmo Elewuju & Anor (2006) 7 SCNJ 270; Iliya Akwai Lagga vs Audu Yusuf Sarhuna (2008) 6-7 (pt 1) 101 (sic); Baba-Ahmed vs Adamu (2009) ALL FWLR 1257 @ 1269. It is the submission of counsel that the lower

Court did not properly evaluate the evidence before it but rather placed reliance on the evidence of the Respondent’s witnesses in the lower Court without considering the defence of alibi put forward by the evidence of the Appellant. The lower Court should not have believed the Respondent’s witnesses as their evidence in Court was inconsistent with the statement of the PW1. Counsel brought out some inconsistencies or contradiction between the oral evidence of PW1 in Court and the statement he made to the police. The failure of the PW1 to explain the inconsistencies and contradictions should work against the Respondent’s case in the lower Court as this renders the evidence of PW1 unreliable. Counsel relied on Princewill vs State (1994) 7-8 SCNJ 226; Maiyaki vs State (2008) ALL FWLR (pt 419) 500 & 514-515 for this submission.

Finally on this point, learned counsel submitted that PW2 case was not investigated and that this issue should be resolved in favour of the Appellant.

Issue 2 as earlier stated is as follows:
Whether or not the trial Court was just and correct to have placed a minimal standard of proof on the prosecution,

whereas, the Law requires proof beyond reasonable doubt on grounds that the liberty of the appellant is at stake?

On issue 2, learned counsel submitted that the standard of proof required in criminal matters is beyond reasonable doubt and that any doubt in the evidence of the prosecution will be resolved in favour of the Accused which should amount to discharging and acquitting the accused. Counsel referred to Kalu vs The State (1988) 10-11 S.C. 18; Gabriel vs State (2010) 6 NWLR (pt 1190) 280 @ 296. It is the firm submission of counsel that the lower Court seem to be satisfied with minimum proof instead of proof beyond reasonable doubt. On this proposition and submission, learned counsel once again emphatically submitted that the failure of the PW1 & PW2 the victim of the crime to mention the name of the Appellant as one of those who robbed them at the earliest opportunity been when their statements were made to the police is a fundamental defect in the Respondent’s case. In submitting that this issue should be resolved in favour of the Appellant, learned counsel urged this Court to allow the appeal and set aside the judgment of the lower

Court.

I will now turn to the Respondent’s brief where 3 issues are formulated for determination. As is my style in this judgment, I will reproduce the issues one after the other and summarize the submission of counsel on the issues.

I will start with issue 1 which reads thus:
Whether from the totality of the evidence adduced at the trial Court, the prosecution has proved the case against the appellant beyond reasonable doubt as required by Law.
Learned counsel for the Respondent answered the question in the affirmative after stating the trite legal position that the Respondent as prosecution in the lower Court has the duty to prove beyond reasonable doubt all the ingredients of the offence. For what will amount to proof beyond reasonable doubt, counsel referred to the cases of Obiakor vs State (2002) 6 SCNJ 193 @ 202; State vs Aibangbee (1988) 7 S.C. (pt 1) 96 @ 132-133; Nasiru vs The State (1999) 2 NWLR (pt 589) 87 @ 99; Onafowokan vs The State (2008) 6 ACLR 461 @ 478; Aiguoreghian & Anor vs The State (2004) 1 SCNJ 56.

The learned counsel for the Respondent having stated the requirement of the Law as to the ingredients of

the offences of Conspiracy and armed robbery citing a number of cases submitted that the Respondent has discharged the burden placed on it by Law citing Tanko vs The State (2008) 16 NWLR (pt 114) 597; Usufu vs State (2007) 3 NWLR (pt 1020) 94; Oyakhire vs The State (2006) 15 NWLR (pt 1001) 157; Sule vs The State (2009) 17 NWLR (pt 1169) 33. Relying on the evidence of PW1, PW2 & PW3, Counsel submitted that the Respondent had proved its case against the Appellant beyond reasonable doubt.

Now, issue 2 reads thus:
Whether the appellant was sufficiently described and fixed at the scene of the crime to warrant his conviction.
Learned counsel to the Respondent tried to distinguish the case of Ani vs State (supra) from the present case and submitted using the evidence of the Prosecution Witnesses that the non-mentioning of the name of the Appellant as one of the robbers who robbed PW1, PW2 & PW3 to the police when they made their statement does not matter as the lower Court cautioned itself on that point before convicting the Appellant. He referred to Joshua vs State (2009) LPELR 8189(CA).

The final issue of the Respondent is:

<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

Whether or not the trial judge properly evaluated the evidence before arriving at the verdict of conviction.

It is the submission of the Respondent’s counsel that the lower Court properly evaluated the evidence of the parties and arrived at the proper decision which in his opinion is not perverse. Counsel relied on FRN vs Iweka (2013) 3 NWLR (pt 1341) 285. It is his final submission that the appeal lacked merit and the appeal should be dismissed.

The Appellant formulated 2 issues for determination while the Respondent formulated 3 issues for determination. The issues formulated by the counsel are not radically different as they are similar in substance. I have the power under the Law to adopt the issues of any of the counsel or even formulate my own issues. See Musaconi Ltd vs AspinallNSCQR vol. 54 (2013) 363.
I will in the circumstance adopt or formulate issues for determination that will address the appeal. I have looked at the 5 issues formulated by both counsel in addressing the 6 grounds of appeal. It is my opinion that all these issues can be addressed under one issue that is a sole issue for determination. In this circumstance, I

will adopt issue 1 of the Appellant’s issue as my issue for determination in this appeal. In addressing issue 1, I believe the other issues will be addressed adequately. For clarity, the sole issue for determination in this appeal is issue 1 of the Appellant. For this appeal, the sole issue for determination is:
Whether upon careful consideration of the totality of evidence adduced at trial, the Learned Trial Judge was not wrong in Law to hold that the prosecution had proved its case against the appellant beyond reasonable doubt?

In addressing this sole issue, it will not be out of place to state some basic and trite principles of Law as background, which legal principles both counsel had alluded to in their submissions in adopting the brief. I do not intend to take us into an undergraduate class in criminal Law but just by way of refreshing our memory, I will take an excursion into some of the trite principles of criminal Law that will be useful in the determination of this appeal.

It is well established and settled principle of our criminal Law that the burden of proof in criminal cases lies squarely on the shoulders of the prosecution.

This burden does not shift at all. This means that the prosecution must prove all the ingredients of the offence the accused is charged with. In Akeem vs The State (2017) 18 NWLR (pt 1697) 311, the apex Court held:
“Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act 2011 have squarely placed the burden of proof in criminal cases on the prosecution, who must prove beyond reasonable doubt the guilt of the accused person and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State (1993) 7 NWLR (Pt. 307) 511 at 531 Paras A-C; Solola v The State (2005) 5 SC (Pt. 1) 135.
In discharging this burden, the prosecution must establish the ingredients of the offence with which the accused is charged. This, it can do by direct evidence or circumstantial evidence or confessional statement.”
In this respect, the accused has nothing to prove as the accused is presumed innocent in Law. The accused is not in Law expected to prove his innocence. This means therefore that even if the accused lies

in his evidence, it is of no moment as that does not take away the burden on the prosecution to prove his case against the accused. This is the position of the Supreme Court in Orisa vs State (2018) 11 NWLR (pt 1613) 453, when the Court held:
“The fact that an accused person told lies to wriggle out of trouble would show that he is a liar, but that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilt of the accused person beyond reasonable doubt.”

There is a difference between the burden of proof and the standard of proof. The burden relates to who must prove what to establish a case while the standard of proof on the other hand deals with what kind of evidence must be proved by the prosecution that will satisfy the Law to secure conviction of the accused.

The standard of proof in criminal cases is different from the standard in civil cases. In civil cases, the standard is on the balance of probability. In such a case, the Court will create an imaginary scale of justice, the party whose evidence tilt the scale in its favour no matter how slight will secure the

decision of the Court in his favour. This is as simple as that. The position is not so in criminal cases. The standard of proof required in criminal cases to secure conviction is beyond reasonable doubt. The evidence required here is deeper than in civil cases. This is understandable because what is at skate in both civil and criminal cases are not the same. In civil cases what is more at skate is the rights of parties mostly on properties and damages are most a time adequate. That is to say compensation is mostly the outcome of civil cases. In criminal cases, on conviction, the accused is deprived his liberty of moving around as he will be made to serve term in prison. To deprive a person the fundamental right of freedom of movement and to restrict such right, the evidence must be more than balance of probability. This is why the standard required in criminal case is beyond reasonable doubt. See Sule vs State (2017) LPELR- 47016 (SC).

Having made the distinction between standard of proof in Civil and criminal cases, it is now time to answer the question, what will amount to proof beyond reasonable doubt? This question has been answered by the Supreme

Court in a cloud of cases. I will mention just one or two of such cases. In Maba vs The State (2020) LPELR-52017 (SC), the apex Court held in this wise:
“The burden placed on the prosecution in a criminal charge is a heavy one. It must establish the guilt of the accused beyond reasonable doubt. See …
Section 135 of the Evidence Act, 2011. It was held in Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) 170 at 193 D-E, (2011) LPELR-SC 197/2010 that:
Proof beyond reasonable doubt does not mean proof beyond all doubt or all 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.
at 186 E-G (supra):
It is not proof beyond all iota of doubt. One thing certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution…the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.
In Afolalu v. State (2010) All FWLR (Pt. 538) 812, (2010) 16 NWLR (Pt. 1220) 584, (2010) 5 –

7 SC (Pt. II) 93, (2010) 6- 7 MJSC 187, it was held 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.
See also: Dairo v. The State (2017) 9-12 SC 119; Ikpo v. State (2016) All FWLR (Pt. 837) 619, (2016) 10 NWLR (Pt.1521) 50, (2016) 2-3 SC (Pt. III) 88; Bakare v. State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, (1987) 3 SCNJ 1.”
One more case in this regard will not harm anyone but for completeness I will mention the case of Afuape vs State (2020) 17 NWLR (pt 1754) 381 where the Supreme Court held thus with regard to proof beyond reasonable doubt in these words:
“Proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of doubt …To prove a case beyond reasonable doubt, there must be a degree of compulsion that is consistent with a

high degree of probability. In other words, if the evidence against the accused is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable,” the case would have been proved beyond reasonable doubt. [Bakare v. State (1987) 1 NWLR (Pt. 52) 579; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501 referred to].”

The requirement to prove the case beyond reasonable doubt does not extend to proof beyond all reasonable doubt as no matter how water tight the case of the prosecution could be, the evidence may not be consistent all the way in all aspect. Indeed, getting perfection in human endeavors is almost impossibility. This is why the Law does not require proof beyond all reasonable doubt. All the Law requires is that, should the evidence establish all the ingredients of the offence against the accused with very high probability in such a way that a reasonable man will draw the conclusion that the case against the accused is proved, then it would have been said that the case has been proved beyond reasonable doubt. The evidence before the Court

which could be by oral or documentary evidence must establish all the ingredients of the offence the accused is charged with in such a way that leaves a reasonable man in no doubt that the accused committed the offence. If there is any doubt, such doubt must relate to the ingredient of the offence otherwise such doubt will be termed fanciful doubt which will not affect the case of the prosecution and possible conviction of the accused. This much the Supreme Court brought out in Jiya vs State (2020) 13 NWLR (pt 1740) 159 when the Court held:
“Proof beyond reasonable doubt” is not proof beyond a shadow of doubt or prove to a mathematical certainty. A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the minds about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reasons. Thus, to require proof beyond every shadow of doubt would mean that no criminal defendant will ever be convicted, for proof to a scientific certainty cannot be attained in human affairs with many variables at play.”

I make bold to say this because, one major ingredient that the prosecution must prove is that the accused actually committed the offence. It will amount to no work done should the prosecution prove all the ingredients of an offence without connecting the accused to the offence. The connecting of the accused to the offence

is a key element for the conviction of the accused. It is not enough to give all the evidence that an offence was committed but the prosecution must go further to show that the offence was committed by the accused. Failure to connect the accused to the offence will render the conviction improper and it can be set aside. See State vs Yahaya (2019) LPELR-47611 (SC).

One of the duties of the counsel to an accused is to apply all the skills of cross examination to establish material doubts in the case of the prosecution as it relates to the ingredients of the offence. When such material doubts are established, the Court will resolve such doubts in favour of the accused and the result of that is to find the accused not guilty. If such doubt exist but the lower Court is unable to find the accused not guilty, an appellate Court can set aside the conviction by discharging and acquitting the accused.

Having taken this excursion into criminal Law and cases Law referred to, it is now time to address this appeal. To the sole issue for determination, the Appellant’s counsel had answered the question in the negative by submitting that the trial judge was

wrong in convicting the Appellant in the light of the evidence before it. Naturally, the Respondent’s counsel hold a different view in answering the question in the affirmative and urged this Court to dismiss the appeal and affirm the judgment of the lower Court. Both of them cannot be right as one will be wrong and the other right. This is understandable as there is no meeting point in the case of the Appellant and Respondent on this point. The lower Court agreed with the case of the Respondent and convicted the Appellant in the judgment contained in pages 261-329 of the record of appeal. The lower Court relied mainly on the evidence of PW1 & PW2 in convicting the Appellant. PW1 & PW2 were the victims of the offence which was alleged to have been committed on 16/10/2011 at about midnight. Both the PW1 & PW2 were robbed the same day, not at the same place together but at their respective houses. The lower Court believed the evidence of PW1 & PW2 who testified to the effect that they knew the Appellant before the day of the incident and therefore recognized him as one of the robbers. That apart, the Appellant was alleged to have been at the

scene of where the money was dropped by the PW1 for the Appellant to pick up. The real issue here as the Appellant’s case suggest or brought out both in the lower Court and before this Court is that, should the lower Court have accepted the evidence of PW1 & PW2 who claimed that they knew the Appellant before the incident when they did not mention the name of the Appellant when they made their statements to the police? The Appellant is emphatic in its submission that this is a fundamental flaw in the decision of the lower Court and it is strong enough to have created doubt in the mind of the Court which should have led to the discharge and acquittal of the Appellant. This is more so that no explanation was given by the prosecution and the witnesses in the lower Court for that omission. This is the lifeline of the Appellant’s case in this appeal.

The lower Court in its judgment held at pages 315-316 of the record, believed the evidence of PW1 & PW2 which identified the Appellant as one of the persons who robbed them. This belief is based on the premise that the evidence was not contradicted. The lower Court stated the trite legal

position of the Law that, a Court will apply caution before convicting a person on the evidence of a victim who omitted to mention the name of the person who robbed him at the earliest opportunity, which usually is when statement is made to the police. After stating that position the lower Court went on at page 316 of the record to hold that the necessary caution was taken before arriving at the decision to convict the Appellant. The lower Court seemed to hold that it will be relying on technicality if the Appellant is not convicted on that ground.

The lower Court in my view seem to trivialize this point which is fundamental because it borders on a very important aspect of establishing criminal liability which is that of connecting the accused to the offence he is charged for. I do not agree that this is a technical issue which can come under the general principle that technicality must not prevail over substantial justice. It is a fundamental issue whether the Appellant participated in the commission of the offence. This issue therefore must be treated with all the seriousness it requires.

In this respect, the issue whether the case of the

Respondent and the decision of the lower Court is flawed because the victims of the offence, PW1 & PW2 did not mention the name of the Appellant as one of those who robbed them, who they claimed they knew before the incident is a fundamental issue for consideration. I will look at a few cases on this point. The Appellant’s counsel cited Ani vs State(supra) and Abdullahi vs The State(supra). I will add to this list the following cases; Abudu vs State (1985) 1 NWLR (pt 1) 85; Onuoha & Ors vs The State(1989) 2 NWLR (pt 101) 23; Udeh vs State (1999) LPELR-3292 (SC); Isah vs State (2008) 18 NWLR (pt 1119) 285; Idemudia vs The State (2015) 6-7 S.C. (pt II) 70; Okiemute vs State (2016) 7 S.C. (pt III) 1. In Idemudia vs State (2015) 17 NWLR (pt 1488) 375, the apex Court held:
“The principle of Law as laid down and which must guide a Court faced with the evidence of a witness fixing an accused person at the scene of crime is settled that, such a witness must have mentioned the name of the accused person or given a description to the police at the earliest opportunity time, especially where the witness claims to have known the accused person

prior to the occurrence of the incident. In other words, where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence, a Court must be cautious in accepting his evidence later and implicating the person or persons charged, unless a satisfactory explanation is given. The reason is obvious because such delay is likely to expose to question the evidence of identity and thereby raising uncertainty as to its acceptability and probative value. See the cases of Abudu v. State (1985) 1 NWLR page 55, also Abdullahi v. State (2008) All FWLR (Pt. 432) p.1047 at 1057.”
Similarly in Okiemute vs State (2016) 15 NWLR (pt 1535) 297, the Supreme Court held:
“It was held by this Court in Bozin V. The State (1985) 2 NWLR (pt. 8) 465 that the importance of the eye witness acting promptly in identifications cannot be over-emphasized. It was stressed that where such witnesses are not prompt to volunteer evidence on the identity of the accused, any such evidence thereafter should be accepted with caution. Also, in COP V. Alao (1959) 10 NLR 39 at 40 , it was held that when an eye witness

omits to mention at the earliest opportunity the names of persons whom he said he saw committing the offence, a Court must be careful in accept in his evidence given later and implicating the persons charged, unless a satisfactory explanation is given.”
Finally on this point I refer to Abudu vs The State (1985) 1 NWLR (pt 1) 55, which is earlier in time and is like the locus classics on this position of the Law on this point. In that case, the apex Court held thus:
“….it is settled Law that where an eye witness (and in the instant case P.W. 1) omits to mention at the earliest opportunity the name or names of the person or persons whom she saw committing the offence, a Court must be careful in accepting her evidence given later and implicating the persons charged, unless a satisfactory explanation is given. See Commissioner of Police v. Tijani Alao & Others (1959) W.R.N.L.R. 39”.
I agree with this statement of the Law.”
The general position in my view from the above cases is that it will be unsafe to convict an accused based on the evidence of a victim or eye witness who claimed that he knew the accused

before the incident of the offence which fact he did not state at the earliest opportunity when the facts were fresh in his mind at the point he was making his statement to the police. This is particularly so, when in the instant case no evidence was led to explain the omission when the witness was testifying in Court. In my opinion, this is not a casual issue. The evidence of a victim of a crime which does not mention the name of the person who robbed him which he claims he knew before then at the time he was making statement to the police will be suspect if he now mention the name during trial. Why should a victim of a crime when things are fresh in his mind while making statement to the police will remember all other issues in relation to the offence and refuse or neglect to mention the name of the person whom he knew before the incident to the police. If there was explanation before the Court for the omission, it would have been sufficient but no such explanation was given during trial when the PW1 & PW2 were testifying. This in my opinion does not add up.

The PW1 in his evidence admitted that he made the statement, Exhibit P1 before the PW1

was arrested. It is not in doubt that the PW1 in Exhibit P1 did not mention the name of the Appellant whom he claimed he knew before the incident. What is worse, he gave no explanation for the fundamental omission. This cannot be glossed over in the light of the fact that the Appellant was not arrested at the scene of the crime. The evidence of PW1 was that he saw the Appellant who was arrested by the police, pick up the bag which was supposed to contain the money which instead contained tissue papers. He identified the Appellant at the police station. There is no evidence as to the process of identification. The only evidence was that the police asked PW1 to identify him as the person who committed the offence. This he did. The Appellant was not identified by PW1 at the scene of the crime but rather in the police station.

The evidence of the Appellant was that he is a commercial driver who was around where he was arrested in the course of his business looking for passengers. He did not deny looking at the bag as he said he was told by some people that the bag fell from his car and when he discovered it does not belong to him, he left it. He was arrested

by the police for another offence and not for robbery. It was at the police station he was identified by the PW1 as one of those who robbed him.

The police did not carry out identification parade but made the PW1 to identify the Appellant as one of the people who robbed him. The Law on how to pin an accused to an offence is clear which either by identification parade or recognition. It is true that identification parade is not necessary in all cases especially when the accused was arrested at the scene of the crime or shortly thereafter. As to when identification parade will or will not be necessary the Supreme Court in Maba vs The State (supra) held thus:
“While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognize the suspect or where his identity is in dispute. See: Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3

NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122; Ogoala v The State (supra); Okiemute v. The State (2016) 15 NWLR (Pt. 1535) 297; (2016) LPELR – 40639 (SC).
The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where:
(a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime;
(b) The witness knew the accused previously;
(c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
See: Okiemute v. The State (supra).”

Similarly in Opeke vs State (2021) 1 NWLR (pt 1758) 570, the Supreme Court held:
“Identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender. In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect. There are many cases where an identification parade is of no use whatsoever in the scheme of things; such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is, indeed, the person that committed the crime. In the instant case, there was enough evidence to identify the appellant as one of the armed robbers, who attacked and robbed PW1 and PW2 that night,

therefore, an identification parade was uncalled for. [Alufohai v. State (2015) 3 NWLR (Pt. 1445) 172; Jua v. State (2010) 4 NWLR (Pt. 1184) 217; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Eyisi v. State (2000) 15 NWLR (Pt.691) 555 referred to.] (P. 599, paras. C-G).”

It can be argued that identification parade is not necessary because the Appellant was arrested at the scene where the bag was dropped and by necessary extension it can be said to be at the scene of the crime.. Is that really true? The crime took place on 16/10/11 and he was arrested on 20/10/2011. This is 4 days after. The place the Appellant was arrested can be argued as a place in continuation of the crime. In this instance, can it be said that he was arrested at the scene of the crime? I do not think so since the offence the Appellant was charged for was Conspiracy and armed robbery. He was not charged for stealing, fraud or extortion or such similar offences. To qualify as arrest in the scene of the crime, it has to be in the scene of the robbery or armed robbery. The point I am laboring to make here is that the offence the Appellant was arrested, charged and convicted for,

the Appellant was not arrested at the scene of the crime. In the circumstance, identification parade would have been necessary. I will stop there on the point of identification parade.

Now, back to the issue whether the lower Court properly caution itself before convicting the Appellant who the PW1 & PW2 knew before the day of the commission of the offence but failed to mention his name at the earliest opportunity, I have read through the judgment and I cannot seem to see how the lower Court cautioned itself apart from just stating that it cautioned itself. This in my opinion is not enough as the lower Court should have properly addressed this and shown how in the evidence before it that even without the victims PW1, PW2 & PW3 mentioning the name of the Appellant as one of those who robbed him, there is enough evidence by confession or circumstantial evidence that the Appellant committed the offence. There is no evidence before the lower Court where the PW1 or indeed any other witness showed how they were able to identify or recognize the Appellant in the robbery even though it took 3 hours. The question which the Respondent, that is, the prosecution

in the lower Court needed to answer is; was the Appellant among those not wearing marks? There is not slight evidence as to how the PW1 & PW2 whose evidence the lower Court relied on to convict the Appellant recognized the Appellant as one of those that robbed them. I am not satisfied that the lower Court properly cautioned itself before convicting the Appellant even when the PW1 & PW2 who claimed they knew the Appellant before the incident, did not mention his name at the earliest opportunity and indeed gave no explanation for why they omitted to do so. This affects the credibility of the evidence of PW1, PW2 & PW3 and in fact the case of the prosecution that the Appellant was one of those who robbed them. This is a fundamental omission. The suspicion is grave but the Law is settled that suspicion no matter how grave cannot justify conviction. See John vs State (2020) LPELR-49635 (CA); State vs Ajayi (2016) 14 NWLR (pt 1532) 196.

The failure of the Prosecution witnesses particularly PW1, PW2 & PW3 to mention at the earliest opportunity the name of the Appellant as one of those who robbed them and much more that no explanation was given at

the hearing for that omission in addition to the fact that the Appellant was not arrested at the scene of the crime. It is my firm view that the lower Court should have exercised greater caution before convicting the Appellant. I resolve the sole issue in favour of the Appellant.

The lower Court understandably had expressed concern about the frequency of armed robbery in Nigeria. I agree with the trial judge to that effect but decisions of Courts are based on evidence and the Law and not sentiment. See Okpe vs Fan Milk Plc & Anor (2016) 12 S.C. (pt II) 1.

The right person beyond reasonable doubt should be convicted. If the standard of evidence required is on the balance of probability I would have had no problem upholding the conviction but the standard is proof beyond reasonable doubt. The Respondent did not prove in the light of the evidence before the lower Court its case against the Appellant beyond reasonable doubt.

In the circumstance this appeal succeeds, it has merit and it is allowed. The implication of this is that the decision of Hon. Justice O. S. A. Obayomi of the Kogi State High Court sitting at Ebogogo in Suit No: HCEB/09C/2011-

Alao Michael & Ors vs The State is hereby set aside. Having so held, the conviction of the Appellant is set aside. The Appellant is therefore discharged and acquitted.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, EBIOWEI TOBI, JCA.
I agree with his reasoning and conclusions. I also set aside the judgment of the Kogi State High Court sitting at Ebogogo in Suit No. HCEB/09C/2011.
I discharge and acquit the Appellant accordingly.

HAMMA AKAWU BARKA, J.C.A.: The crux of the appeal herein deals with the question, whether appellant was adequately identified as demanded by Law. That issue was adequately considered to my satisfaction and I ultimately agree with the reasoning and conclusion of my learned brother Ebiowei Tobi JCA, and accordingly allow the appeal.

Appearances:

Y. Abdullahi For Appellant(s)

Ibrahim Mohammed SAN (A.G. Kogi State) with him, H. O. Abdullahi D.P.P. and M. O. Otaru PLO For Respondent(s)