Cyriacus Ogidi & Ors V. The State (2003)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

The appellants were arraigned on the information of the Attorney-General, Imo State, before the Owerri High Court, (C.I. Ohakwe, J.) charged with the offence of armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation, 1990. The “particulars of offence” charged as follows:-

“Cyriacus Ogidi (alias Ogbuma), Augustine Awuzie, Paul Uzoechi, Chukwudi Ogidi and others at large, on the 1st day of June, 1997, at Amuzu Uno Arondizuogu, in Orlu Judicial Division, while armed with offensive weapon to wit: locally made pistols and matchets, robbed one Mrs. Ndidi Nnakaihe, of the following items of property, one trident radio cassette, valued at N960.00, two electric sockets valued at N700.00, two brocade wears valued at N3,000.00, one jean trousers valued at N400.00, two trousers valued at five hundred (N500.00) five cassette cartridges, valued at N500.00, children wears valued at N1,500.00, Baby food drink valued at five hundred Naira (N500.00), assorted types of creams and soap valued at about N500.00, N4,000.00 cash, one umbrella valued at N150.00, one wall clock and a bag, containing baby kite. Total value of property robbed, twelve thousand five hundred and sixty Naira (N12,560.00) property of Mr. Innocent Nnakaihe in the dwelling house of the aforesaid Innocent Nnakaihe”.

Each accused person pleaded “No Guilty” to the charge.

At the trial, the prosecution called four witnesses to establish its case. The 1st accused, Cyriacus Ogidi, (alias Ogbuma) testified and brought his case to a close with the testimony of the DW5 (Sunday Ogidi). Each of the other three accused persons also testified. Each closed his case and called no other witness.

At the conclusion of the evidence and after receiving the final oral addresses by the counsel, the learned trial Judge in a reserved and well considered judgment, after a review and an appraisal of the evidence, accepted the case of the prosecution. He rejected the defence of each of the accused, convicted each accused as charged and, sentenced each accused accordingly, that is to say, “to death by hanging by the neck or to suffer death by firing squad as the Governor of Imo State may direct”.

The case of the prosecution as presented, briefly summarised, was as follows:-

Mrs. Ndidi Amaka Nnakaihe (PW1) knew the 1st accused and that he was a native of Owerre Akokwa. On the 1st of June, 1997, while she and her mother-in-law were sleeping in their house, she heard some gun shots in their compound. She heard some voices calling on them to open their doors themselves or else if they (the robbers) opened it, they would kill her. As the witness testified at page 46 lines 15 – 20:-

“When they forced the door open two people carrying guns entered. At that time there was a lantern in my room. One of them carried it to the parlour. It was then I recognised one of the two persons known as Cyriacus Ogidi (1st accused person)”.

These men started ransacking their house and removed various items of their property. Cross-examined, the witness at page 50 of the Record Lines 30 – 31 emphasised, “Yes, I told the court that it was when the lantern was being removed that I recognised the 1st accused”. Answering another question, still under cross-examination, the witness had this to say: at page 51 of the record:-

“It is not how I told the police about recognising the 1st accused that it was when they were going that I was able to recognise the 1st accused”.

The statement, unsworn, by the witness to the Police dated the 29/6/97, was tendered and admitted in evidence as evidence as exhibit A.

Linus Ekenezie (PW2) knew the 1st accused and that he was from Owerre Akokwa. Part of his testimony at page 53 of the record was:

“Around 12.30 midnight on that day (1st of June, 1997). I was sleeping on my bed in my room. I heard a knock on the door where my wife and children were sleeping. I opened the door to my room to know who was knocking. When I flashed my torch to see who was knocking, I saw the 1st accused; he ran into my room and he was carrying matchet. When I flashed the torchlight, he tried to cover his face not knowing that I had already seen him. When he was covering his face with his hand, I ran through the back door of my house”.

The witness said that he ran to his brother, (Augustine Okeke); woke him up and told him of the presence of some robbers in his house. Both of them raised an alarm. The villagers and the men of the vigilante group on night-guard-duty were alerted. The robbers took to their heels. But the PW2 and his brother, and the men of the vigilante group however, pursued them. They ran into the house of the 1st accused. As they were fleeing, some items of their loot fell from them. The witness and those men of the vigilante group decided not to follow the robbers into the house of the 1st accused for fear of being shot. As the PW2 further testified:-

“I told the people pursuing them to wait and hide somewhere to see if the robbers would come back to collect the items of property that fell off from them. While we were waiting around 5 a.m. the robbers came back to collect the properties that fell off from them while they were running away. They saw us and ran back to house of the 1st accused Cyriacus Ogidi. We waited till morning. In the morning, I went and reported to the Police at Ideato Police Station”.

Following a report on the 2nd of June, 1997, to the Police by the PW1 that the 1st accused and his gang of robbers, robbed her on the 1/6/97 of her property, Police Corporal Nnorom Ndubuisi (PW3) and Police Corporal Emmaunel Nwede were detailed to investigate the case. The PW1 accompanied them to Chief Bathram Nwangwu, the Chairman of Ndi-Amazu Vigilante Group. The Chief escorted them to the house of the 1st accused. Therein, he (PW3) met the 1st, the 2nd, the 3rd and the 4th accused persons. The witness executed a search warrant (exhibit H) on the house and premises of the 1st accused person in the presence of all the accused persons. The accused persons endorsed the back of the exhibit H.

The witness recovered from the house and premises of the 1st accused person the items of property listed at the back of exhibit H. (See exhibit R, R1 – R.33, S, T,T1 – T4 U, U1 – U2, W,W1 – W2; Y,Y1- Y2).

The PW3 arrested the accused persons. He, then, took them along with the items of property which he recovered to the house of the PW1. Along the route from the 1st accused house to the house of the PW1, the PW3 recovered other items of property (See exhibit L, L1, O, Q, Q1 – Q2 of PW1 alleged to have been dropped by the robbers while they were fleeing).

In the premises of the PW1, the PW3 recovered the live cartridge and two expended cartridges. (See exhibits K, K1 to K2). He saw the PW1’s broken door and ceiling, and the scattered condition of the PW1’s rooms.

Corporal Nnorom Ndubuisi took all the accused persons along with the items of property which he recovered to the Police Station. At the Police Station, he charged and cautioned each accused person.

Each accused person volunteered a statement to him. The 1st accused person’s statement is “exhibit EE”. The 2nd accused person’s statements are “exhibits BB” and “BB1”. The 3rd accused person’s statement is “exhibit CC”. The 4th accused person’s statement is “exhibit DD”.

At the conclusion of their investigation, PW3 compiled a case file. And on an instruction, he transferred the case and the exhibits to the State C.I.D. Owerri. Cross-examined, PW3 at page 59 of the record of appeal lines 5 to 8, stated, “It is not true that people collected the recovered items and gave them to me. I recovered them myself. The items of property I recovered were not planted”. Answering a question still under cross-examination, the PW3 testified (see page 77 lines 9 to 10) thus:

“The 1st accused is not a native doctor. At the time I investigated this matter, the 1st accused had no occupation”.

Police Sergeant Augustine Peters (PW4) also took part in the investigation of the case. The case was referred to him following a petition dated the 3/6/97 by the PW2 to the A.I.G. zone 6, Calabar.

In the course of the investigation, PW4 retrieved the case file and the items of property previously transferred to the State C.I.D. Owerri. The accused persons each volunteered a statement to the witness under caution. The 1st accused person’s statements are “exhibits ‘C’ and ‘D’. The 2nd accused person’s statement is exhibit F. The 4th accused person’s statement is exhibit G. At the conclusion of his investigation the accused persons were charged to court.

Each accused person entered on his defence. The 1st accused testified as DW1. He denied the charge. He said he was a herbalist or native doctor. On the 2/6/97, the 2nd accused person (DW2), the 3rd accused person (DW3) with his child came to him to receive medical treatment for their respective illnesses. The Police arrived his house, while he was there with the patients. The Police executed the search warrant (exhibit H) on his house and premise. Part of his evidence at page 78 of the record was:

“They came out to my compound, one man from my place, we call him ‘Ihenafefe’ or, “Agu Na echemba” pointed at the bush at the back of my house, the Agu na echemba entered the bush with his men, and they recovered a bag and gave it to the Police”.

The witness further stated that it was along the road with the Police that he saw a bag under a mango tree close to the house of PW2. The bag contained the exhibits L, L1. It was recovered by the Police. The Police took him with the other accused persons to the premises of the PW1. DW1 adopted the statements he made to the Police as part of his defence.

According to him, he had had previous quarrels with the husband of the PW1, over a woman whom he married and also with the PW2. As a result of these quarrels his relationship with the PW2 had not been cordial.

Cross-examined, the DW1 admitted he volunteered a statement “exhibit GG” to the state C.I.D. Owerri. He denied he knew any person called Cynco. He was not a registered herbalist.

The 2nd accused (Augustine Awuzie) also testified as DW2. He denied the charge. His story was that he slept in his house in the night of the 1st of June, 1997. On the 2/6/97, at about 10 a.m he went to the 1st accused person for medical treatment for malaria and hyenia. While he was in the 1st accused person’s house with the 3rd accused and the 3rd accused’s child, the Police arrived and arrested him. He admitted making the statement “exhibit HH” to the State C.I.D. Owerri.

The 3rd accused person (Paul Uzoechi) testified as DW3. He denied the charge. According to him, he went to the 1st accused on the 2/6/97 taking along with him his child for medical treatment. While in the 1st accused person’s house, he saw people trooping into the compound. The Police interrogated him and he told the Police why he was in the 1st accused’s house; and he showed to the Police the wrapper with which he carried his child to the 1st accused. He admitted making the statement to the State C.I.D. Owerri. (“exhibit JJ”).

The 4th accused (Chukwudi Ogidi) testified as DW4. He denied the charge. His story was that the Police arrested him on his way from his shed to his house for a break-fast. He said he did not know why he was brought to court.

Questioned, he denied that any items of property were recovered in the compound of the DW1. He however, admitted making the statement (“exhibit KK”) to the State C.I.D. Owerri.

Sunday Ogidi (DW5) in his evidence stated that the DW1, his brother, had asked him to keep his Traditional Medicine Practitioners Certificate for him (DW1). He (DW5) had the original of the certificate in their home. He had a photocopy thereof.

Note: The photocopy of the original certificate was not tendered in evidence. The witness admitted that he made no statement to the police officers investigating the case.

Dissatisfied and aggrieved with the decision of the trial court, each accused person had appealed therefrom to this court. However, counsel on an application, later filed additional grounds of appeal for all the accused and one brief of argument on their behalf. The four accused persons are herein the appellants. The State-prosecutor is the respondent herein.

The parties filed and exchanged their briefs of argument in obedience to the Rules of Court. Therein each party formulated the issues for determination.

The appellants, in their brief of argument filed on the 19/12/2000 identified at page 8 thereof three (3) issues for determination to wit:-

“1. Whether sufficient evidence was led to establish the guilt of the appellants?

2. Whether the learned trial Judge was right in invoking the provisions of section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, against the appellants and to their prejudice.
3. Whether the prosecution proved the charge against the appellants beyond reasonable doubt as required by law”

The respondent on its part identified two issues in the respondent’s brief deemed filed on the 24th of September, 2001.

They are:

“1. Whether there is any material contradiction between the evidence of the PW2 and PW2 vis-a-vis their various statements to the police regarding their identification of 1st appellant at the scene of crime.

2. Whether the prosecution proved its case beyond reasonable doubt. At (sic) recards (sic) each of the appellants”.

At the hearing of the appeal, the counsel adopted their respective briefs. While on the one hand the counsel for the appellants urged court to allow the appeal, counsel for the respondent urged court otherwise.

I have scrutinised the issues formulated in the appellants’ brief. They could have been condensed and concisely stated. But be it as it may, the issues could be taken together, considered and disposed of together. This I intend to do.

Contentions:

Shorn of some unnecessary verbiage and repetitions, the gist of the counsel’s contentions could conveniently be summarised.

Learned Counsel had argued issue no.1 in sections or, segments. It was contended that there was a contradiction:-

(i) In the evidence by the PW1 and her statement (exhibit A) to the Police. Counsel referred to the evidence by the PW1 at page 46 of the record. It was contended that whereas the PW1 testified that she saw and recognised the DW1 (Cyriacus Ogidi) with the aid of a lighted lantern, in exhibit A, she stated that she identified the 1st accused person, “when the robbers were leaving his house”.

(ii) There was a contradiction in the evidence by the PW2 at page 53 lines 17 – 19 and his statement (exhibit B) in that PW2 testified:-

“I opened the door of my room to know who was knocking. When flashed my torch to see the person who was knocking, I saw the 1st accused person he ran into my room and he was carrying a matchet”.

In exhibit B he stated;

“that when he flashed his torch Oguma chased him with and he escaped”

(iii) The contradiction in the evidence by the PW1 and the PW2 was, according to the counsel at page 11 of the appellant’ brief, “Most importantly while PW1 said the robbers were carrying guns PW2 on the other hand said 1st accused was carrying matchet. Whom do we believe”.

The above alleged contradictions, counsel contended, had the effect of casting some doubt on the evidence by the witnesses and rendering their evidence unreliable. Relying on the decision of Christopher Onubogu v. The State (1974) 1 All NLR 561 at page 570, counsel submitted that the witnesses ought to be disbelieved.

It was further contended in page 12 of the appellants’ brief that the learned trial Judge having at page 118 lines 13 to 16 of his judgment held that there was no direct evidence of seeing or identifying the 2nd, 3rd and 4th accused persons at the scene of crime, he ought to have acquitted and discharged each of them without more. The learned trial Judge came under fire for invoking section 149(a) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, to the detriment of the accused persons. In the opinion of the counsel, the trial Judge thereby “descended into the area” and speculated on the items of property (the exhibits) alleged robbed of the PW1 and relied thereon as linking the appellants with the offences charged.

It was further contended by counsel in the appellants’ brief at page 14 paragraph 3.9 thereof that the learned trial Judge was wrong in relying on the items of property recovered by the PW3 (the exhibits) as affording circumstantial evidence against the appellants.

Counsel referred to the evidence by the PW3 to the effect the property (the exhibits) was recovered in the DW1’s “premises” but the DW1 in his evidence testified that the exhibits were recovered, “one hundred meters” from his house. This piece of evidence, counsel contended, stood “unchallenged” and ought to have been acted on.

Reliance was placed on the case of Omoregbe v. Lawani (1980) SC 108. Besides, what the PW3 called “premises’ of the DW1 was not explained.

Therefore, there was no nexus or link between all the accused persons and the items of property recovered by the PW3. A long line of decided cases including Ukorah v. The State (1979) 4 SC 167 at 174; Adie v. The State (1980) 1 – 2 SC 116 at 122 (to mention only the two) were cited.

Dealing with the appellants’ issue No. 2, counsel contended that the learned trial Judge was in error in invoking section 149(a) of the evidence Act (supra) and importing the doctrine of recent possession as a safe haven to convict the appellants.

Arguing the appellants’ Issue No.3, counsel contended that the prosecution failed to prove its case against each of the appellants, as required by section 138 of the Evidence Act, beyond all reasonable doubt. With respect to the DW1 (Cyriacus Ogidi) counsel contended at page 19, para. 5.2 of the brief that the evidence by the PW1 and PW2 that they recognised and identified the 1st accused as one of the robbers was “unreliable having regard to suspicious circumstances prevailing which ought to be resolved in favour of the 1st accused”. Re the 2nd, 3rd and 4th appellants, counsel at page 20 of the appellants’ brief, contended that in the absence of direct evidence that any of them was seen or identified at the scene of crime, created doubtful circumstances which ought to be resolved in their favour. Reliance was placed on the cases of Bakare v. The State (1987) 1 NWLR (Pt. 52) 579; Omogodo v. The State (1981) 4 SC 24 and Onah v. The State (1985) 3 NWLR (Pt. 12) 235.

On his part, learned counsel for the respondent contended that there was no contradiction either in the evidence by PW1 and exhibit A; or in the evidence by PW2 and exhibit B. And there was no contradiction in the evidence by the PW1 and PW2 inter se. Counsel drew attention to the evidence by PW1 at page 46 lines 16 to 20; and at page 54 lines 1 to 4 under cross-examination. What was relevant or material, according to counsel, was whether or not either the PW1 and/or the PW2 had the opportunity or, means of seeing and recognising the DW1 as one of the robbers. The witnesses knew the DW1 previously and knew from where he came.

Counsel further contended that, while the PW1 testified to whom she saw and what the DW1 had (i.e. gun) in their house and at the time, the PW2 testified to whom he saw and what the DW1 was carrying in his (PW2’s) house and at a different time. The evidence by the PW1 that when she saw and recognised the 1st accused, he had a gun could not, therefore, be said to contradict the evidence by PW2 that when he saw and recognised the DW1 he was carrying a matchet. What mattered was whom the witness saw and, what the witness saw the person whom he or she saw, carried in the different respective setting.

It was contended by the counsel in the respondent’s brief dealing with his issue No.2 that the prosecution discharged its burden of proving the guilt of each accused person beyond reasonable doubt. Counsel further contended that the PW3 testified that the PW1 in her report to the police on the 2/6/97 reported that the DW1 with his gang of other robbers robbed her of her property on the 1/6/97. Counsel referred to the evidence by the PW1 and PW2 of their identification of the DW1 as one of the robbers. By the evidence of the PW2, the DW1 was one of the robbers whom he (PW2) and the Vigilante Group on night-duty-guard chased until they (the robbers) ran into DW1’s house. The robbers returned at 5 a.m. to recover the property they dropped while fleeing. Again, they were chased and, again they ran into the house of the DW 1. The PW2 and the Vigilante Group kept surveillance over the DW1’s house, until the PW3 arrived the house of the DW1 and arrested all the accused persons. Dealing with the recovery of the exhibits by the PW3 he drew attention to and referred to the statement (exhibit C) by the DW1 and, “exhibit EE” also by the DW1 to the police and, further to DW1’s evidence under cross-examination denying any knowledge of one Cynko, mentioned by the DW1 in exhibit D.

There was a link or nexus (the chase of the robbers, DW1 and his gang, twice, into the house of DW1, the arrest of all the appellants by the PW3 in the DW1’s house) sufficiently connecting the DW1 and the other appellants with the offence charged, counsel submitted. All the appellants endorsed exhibit H, (the search warrant). The evidence by the DW1 that he was a herbalist was contradicted by the DW5. The evidence by the DW2, DW3 that they went to the DW1 for medical treatment was rejected.

It was further contended that the recovery of the property of which the PW1 was robbed and recovered in the compound of the DW1 in the presence of all the appellants who endorsed the search warrant (exhibit H) was evidence enough linking all the appellants and involving them in the robbery.

The counsel contended that DW4 was arrested by the PW3 along with the others in the house of the DW1. The DW4 did not in evidence point to who had identified him to the police outside the house of DW1. Besides, there was no evidence by any witness in proof that DW4 was arrested in any other place than in the house of the DW1. Concluding, counsel submitted that on the evidence, the prosecution did discharge the burden on it of proving the charge against all the appellants beyond reasonable doubt.

Treatment: I have very carefully considered the learned submissions by the counsel in their respective briefs of argument. The appeal, in my view, turns principally on facts. And I do remind myself that the appellate courts do not believe or disbelieve witnesses. No. With regard to issues of credibility of witnesses, the appraisal of evidence and the confidence to be reposed on the testimony of any witness an appellate court would take the view that not having seen or heard the witness, it cannot on printed evidence usurp the essential function of the trial court – the court that saw, heard and watched the witness testify-: See Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372, 54 at 98 -99. It is, however, otherwise if the sole question is the inference to be made from admitted or uncontested facts. See Benmax v. Austin Motors Ltd. (1995) AC 370 at 375.

Now, it ought to be pointed out to be borne in mind that, the learned trial Judge rejected the evidence that the DW3 went to the DW1 with his child for medical treatment, and did reject the evidence by DW1 that he was a herbalist or native doctor. The trial Judge also rejected the evidence by DW4 that he was at any other place, than in the house of DW1. He accepted and believe the PW3 that he arrested all the appellants in the house of DW1 and that the DW1 was not a native doctor or herbalist.

On the one hand, counsel for the appellants contended that there was a contradiction; (i) in the evidence by PW1 and exhibit A; (ii) in the evidence by PW2 and exhibit B and (iii) in the evidence by PW1 and PW2 inter se. On the other hand, the respondent’s counsel submitted that there was no such contradiction at all. So, who is right? I had above reproduced the evidence by PW1 and parts of exhibit A alleged to be contradictory. I also reproduced above the evidence by PW2 and the portion of exhibit B alleged to be contradictory and, the evidence of PW1 alleged contradictory with evidence by PW2.

I shall pause here to remind myself of the principle to guide me in reaching my conclusion. As the Supreme Court observed in Nathaniel Nasumu v. The State (1979) 6 -9 SC 153 at 159:

“The pertinent question in this case, is whether the alleged contradictions in the evidence of the prosecution are so fundamental or in other words, they are such contradictions” on material points as to leave a reasonable tribunal in doubt.

The appellant has relied on the decision of this court in Christopher Onubogu & Anor. v. The State (1974) 9 SC 1. In that case, this court observed…

The emphasis in the passage is on “material point” and we would like to state here that not every contradiction, however, minute, would be sufficient to damnify a witness. The contradiction that would make a court disbelieve a witness has to be on a material point in the case. And what is material, however, depends on the facts of each case. It must be such a contradiction that one of the witnesses contradicting the other on a material point is discredited and could as a result not be believed as witness of truth either generally or on the material point in issue.

But the question requiring firstly, to be asked to be answered is this: what is a “Contradiction”? The word “contradiction” is a simple English word. It derives from two Latin words: “contra”, and, “dico- ere – dixi – dictum” meaning, “to say the opposite’, hence “contradictum”. A piece of evidence contradicts other when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.

Guided by and armed with the principle above discussed and applying it to the alleged contradictions the question becomes this:

(i) Did exhibit A as reproduced above, say the opposite of what PW1 stated at page 46 lines 15 to 20 of the record (supra)? The same question applies to exhibit B and the evidence by PW2 reproduced above; and also to the evidence by PW1 and PW2 inter se. Put in other words: was the evidence by PW1 that she saw and recognized Cyriacus Ogidi (DW1) with the aid of a lighted lantern in their house or room the opposite assertion of, per exhibit A, that she recognized DW1 (Cyriacus Ogidi) alias Ogbunma of Owerre Akokwa “as they were leaving our house”.

The material point in the evidence and in exhibit A was the fact that PW1 did recognise DW1 on the night of the robbery in her house. Was there, therefore, a contradiction on this “material point” of the recognition of the DW1?

Before I record my opinion guided by the Nathaniel Nasumu case (supra), how did the learned trial Judge treat the alleged contradiction? Writing at page 117 of the record, the learned trial Judge expressed himself, inter alia:-

“For a contradiction to be fatal to a case, it must not only relate to material fact”.

Continuing in lines 24 to 25 of page 117, he said,

“I see no material contradiction in the evidence of PW1 that undermined her credibility. I believe her story that she saw the 1st accused at the scene of crime”.

I am in complete agreement with the learned trial Judge that there is no contradiction in the evidence by PW1 and exhibit A.

Passing over to the evidence by PW2 and exhibit B, and applying the principle discussed above, did exhibit B, say the opposite of what the PW2 testified to on the “material point”, whether he saw and recognised the DW1? I did above reproduce the evidence by PW2 and also the portion of exhibit B. Whether in exhibit B or in his evidence, PW2 was saying that he saw and recognised DW1 on the night of the 1st of June, 1997, by flashing his torch light as he (PW2) opened the door to his room.

The learned trial Judge in his treatment of the alleged contradiction did write at page 118 lines 10 to 12 of the record:”

“There is no contradiction in his oral testimony and his extrajudicial statement exhibit B”.

He is right and I agree with him.

Finally, on the question of contradiction; did PW1 in her evidence, contradict the PW2 in his evidence? In her evidence, PW1 said that the DW1, when she saw and recognised him, was carrying a gun. In his evidence PW2 said that when he saw and recognised DW1, flashing his torchlight, the DW1 was carrying a matchet. It must be noted that the time and where the PW1 saw the DW1 were quite different from the time and where PW2 saw DW1 (what the counsel for the respondent in respondent’s brief styled, “different scenarios”.)

I am in agreement with the submission by the counsel for the respondent that there was no contradiction between the PW1 and the PW2.

The learned Counsel for the appellants had contended that the learned trial Judge having said that there was no direct evidence by the prosecution witnesses of having seen or recognised the 2nd, 3rd and 4th appellants at the scene of crime on the 1/6/97, he ought to have acquitted and discharged each of them forthwith and that the trial Judge was in error to have resorted to circumstantial evidence.

With respect to the learned Counsel, I do not share his opinion. The submission seems to me novel. Why? Because it is well settled law that in a criminal trial, an issue may be proved either by direct evidence or evidence aliened. And it is not derogatory to say that evidence is circumstantial.

Circumstantial evidence is as good as and sometimes better than any other evidence. What is meant is that, there is a number of circumstances which are accepted to make a complete unbroken chain of evidence. See Idigbe, JSC in Valentine Adie v. The State (1980) 1 – 2 SC 27 and its line of other cases. Witnesses may lie and sometimes do lie. But circumstances do not lie.

I shall pause here to enable me dispose of the contention by the counsel for the appellants that there was no explanation of what “Premises” meant by the PW3 and the submission that the DW1’s evidence that the items of property allegedly robbed, were recovered 100 metres away from the DW1’s house, remained “unchallenged”, to put the points aside.

I shall carry parts of exhibits C and EE (the statements by the DW1) to the Police. In “exhibit C”, the 1st accused stated, inter alia:

“I know why Police arrested me. I was arrested because the Police saw some exhibits in my compound, that is in the small bush in my back yard. I don’t know how the exhibits got to that place”.

In “exhibit EE”, the 1st accused person also stated:-

“Actually the following items were recovered in my house (compound) by Police thus:- One Telephone… I do not know how the above items entered inside my compound” .

Now, the question arises: Was there evidence aliunde linking the 2nd, 3rd and 4th appellants with the robbery on the 1/6/97, which the learned trial Judge accepted writing at page 124 of the record of appeal, the learned trial Judge expressed himself, inter alias, as follows:-

“The robbery of the PW1 in her dwelling house, the fact of seeing and recognition of the 1st accused in the heat of the robbery incidence and at the scene of crime, the chasing of the robbery gang, twice into the compound of the 1st accused person, the recovery of the robbed items of property along the escape route of the robbers and from the compound of the 1st accused, the presence of 2nd, 3rd and 4th accused persons in the house of the 1st accused soon after the robbery and who could not give credible account of their presence at the time coupled with the fact that no other person or persons such as other inmates of that compound were seen lead to the irresistible conclusion that the 2nd, 3rd and 4th accused persons were members of the robbery gang who in company of the 1st accused person, robbed the PW1 of her valuable household property in the late hours of 1st June, 1997, in her dwelling house at Amuzu Uno Arondizuogu”.

But it was, however, urged that the prosecution failed to prove the case against the appellants beyond reasonable doubt as required by section 138(1) of the Evidence Act. The prosecution has the statutory duty or burden under section 138(1) of the Evidence Act of establishing guilt of an accused beyond reasonable doubt. Needless, quoting decided cases or authority for the proposition. No.

Now, the pertinent question to ask, firstly, becomes this. What are the ingredients of the offence charged requiring to be proved by the prosecution? Section 1(2)(a) of the Armed Robbery and Firearms (Special Provisions) Act, Cap. 389, Laws of the Federation, 1990, provides:-

“1(2) If –

(a) any offender mentioned in subsection (1) of this section above is armed with any firearms or any offensive weapon or is in company with any person so armed; or …

(b) x x x x x x x x x x x x x

the offender shall be liable upon conviction under this Act to be sentenced to death…”

Section 1(1) of the Act, however, reads, in part, as follows:-

“Any person who commits the offence of robbery shall …”

Therefore, all the prosecution is required to prove by credible evidence is that the person(s) who robbed PW1 was either armed with a firearm or any offensive weapon or, was in company of any other person(s) so armed.

But what, then, is “proof beyond reasonable doubt’? The observation per Denning, J. in Milner v. Minister of Pension (1847) 2 All ER 372 at 373 replies my respectful question.

He said:-

“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community, if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”.

On the evidence before him, the learned trial Judge had concluded at page 125 of the record of appeal that the prosecution had discharged the burden on it of proving charge against each of the appellants beyond reasonable doubt. He was right.

I shall now proceed to record my resolution of the issues as formulated in the appellants’ brief formally. Each of the three (3) issues is answered in the affirmative. The appeal, in my respectful view, lacked any merit.

In conclusion, I affirm the judgment of the learned trial Judge on the 17th of December, 1999 and I do hereby, dismiss the appeal accordingly.

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Other Citations: (2003)LCN/1341(CA)