Temidayo V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

ONYEKACHI AJA OTISI, J.C.A.

This appeal was brought by the Appellant against the judgment of the High Court of Ogun State, Ijebu Ode Judicial Division, sitting at Ijebu Ode delivered on August 20, 2020 Coram A. A. Babawale, J. in which the Appellant was convicted and sentenced to death by hanging on two count charges of:

a) CONSPIRACY TO COMMIT ARMED ROBBERY contrary to Section 21(b) and punishable under Section 16(1) (a) & (b) of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016.

PARTICULARS OF OFFENCE

ADELAJA TIMIDAYO on or about 15th day of August, 2017 at about 19:30 hours at Ikoto area, Ijebu-Ode in the Ijebu-Ode Judicial Division conspired with another now at large to commit Armed Robbery.

b) ARMED ROBBERY contrary to and punishable under Section 16(1) of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016.

PARTICULARS OF OFFENCE

ADELAJA TIMIDAYO (M) on or about the 15th day of August, 2017 at about 19:30 hrs at Ikoto ara, Ijebu-Ode in the Ijebu-Ode Judicial Division while armed with cutlass robbed one Julius Monday of his Bajaj Motorcycle with Reg. No. LAR 239 WM, the sum of N75, 000, a Techno phone and a pair of shoes.

Upon arraignment, the Appellant pleaded not guilty. At the trial, the Respondent called one witness, who was the complainant, in proof of its case, while the Appellant gave evidence for himself and thereafter closed his case. PW1, a commercial motorcyclist, testified that on 15/9/17, he picked up the Appellant, who was known to him, and one other person, as passengers from Okunowa to Ikoto. At Ikoto, the other passenger put dried pepper and soap into his eyes while he was still on his motorcycle. Consequently, they all fell on the ground. The same passenger made away his motorcycle while the Appellant macheted him with a cutlass. PW1 said he then engaged the Appellant in a fight. PW1 gave the time that the incident took place as between the hours of 8pm and 9pm. Men from a Vigilante group in the area intervened and took them both to Igbeba Police Station where the Appellant was detained while PW1 left for the hospital. PW1 further said he was also robbed of his Techno Phone and gave the registration number of his motorcycle as LAR 239 WM.

The Appellant, who testified that he was a timber worker, denied that he had robbed PW1. He said that his wife was ill on the day of the incident. He went to Ikoto to get a particular herb, which he usually used to cook for her whenever she was ill. At Epe garage, he joined a motorcyclist, PW1, with his cutlass to take him to Ikoto on a fare of N50.00. When they got to Ikoto, he gave PW1 the sum of N500, expecting change of N450, rather PW1 gave him N400. A dispute ensued and, in the process, a fight erupted between the Appellant and PW1 over the fare. The Appellant testified that PW1 called on other commercial motorcyclists who joined in beating him. The Vigilante group in the area came to the scene and both the Appellant and PW1 were taken to Igbeba Police Station. The Appellant in his testimony stated that no pepper was found on him and that though he had a cutlass, he did not machete PW1. The Appellant further denied that he robbed PW1 of either his Techno phone or motorcycle, and that he was the only one on the motorcycle.

After the conclusion of trial, the learned trial Judge dismissed the defence of the Appellant but relied on the evidence of PW1 to convict and sentence the Appellant to death by hanging. Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal against the said judgment on 8/10/2020, on three grounds of appeal, pages 45 – 51 of the Record of Appeal.

The parties filed Briefs of Argument. The Appellant’s brief was filed on 11/12/2020, while the Respondent’s brief was filed on 15/3/2021 but deemed properly filed and served on 22/6/2021. At the hearing of the appeal on 22/6/2021, the Briefs of Argument were respectively adopted by O.A. Alao, Esq., with S.B. Olarinde, Esq., for the Appellant, and Bukuola Duroajaiye, Esq., with M. Shittu, Esq., for the Respondent.

For the Appellant, two issues distilled for the determination of the appeal were:

i. Whether the learned trial Judge rightly held that the Respondent proved its case against the Appellant beyond reasonable doubt as enjoined by law and/or whether the doubts established in the case of the prosecution ought to be resolved in favour of the Appellant (ground 1 and 3).

ii. Whether the trial Judge was right to have relied on the evidence of PW1 to convict the Appellant (ground 2).

For the Respondent, two issues were formulated for determination of this appeal:

a) Whether the prosecution had proved its case beyond reasonable doubt.

b) Whether the Judge was right to have convicted the Appellant on sole evidence of PW1.

The issues formulated by the parties seek the same resolutions. I shall adopt the same in consideration of this appeal and shall determine both Issues together.

Issues 1 and 2

The crux of the Appellant’s complaint was that the learned trial Judge convicted him for the two – count charge relying solely on the evidence of PW1. The trial Court totally disbelieved the testimony of the Appellant, describing it as an afterthought, but without calling for corroborative evidence to support PW1’s evidence, the trial Court held that the Respondent has successfully proved its case beyond reasonable doubt. The Appellant complained that the decision of the lower Court was reached notwithstanding the fact that there were doubts in the case of the Respondent, which ought to have been resolved in favour of the Appellant.

It was submitted that the position of the law is that before any accused person can be convicted of any criminal offence, the prosecution must prove its case beyond reasonable doubt by virtue of Sections 135(1) and 139 Evidence Act, citing Ayub Khan v. State (1990) 2 NWLR (PT 172) 127 at 133-134; Akinfe v. State (1998) 3 NWLR (PT 85) 729; Aruna v. State (1990) 6 NWLR (PT. 155) at 12. Any doubts shown in the evidence for the prosecution must be resolved in favour of the accused person, citing Anekwe v State (2014) 10 NWLR PT 1415 at 353 SC.

The charge against the Appellant was that he robbed one Julius Monday of his Bajaj Motorcycle with Reg. No LAR 239 WM, the sum of N75,000, a Techno phone and a pair of shoes. PW1 gave no evidence as to who collected his Techno phone and the pair of shoes. He also gave no evidence that any sum of money whatsoever was stolen from him or that any pair of shoes was collected from him by the Appellant. It was argued that the evidence of PW1 was riddled with contradictions, creating doubt in the mind of a reasonable man as to whether there was actually a robbery incident. The state of the evidence also left the question of whether or not someone else at the scene of the incident took advantage of the fisticuff between PW1 and the Appellant to steal the motorcycle or whether there had been no robbery incident and the account of PW1 was a made-up story. It was submitted that any doubt, contradiction or uncertainty as to whether it is the accused person who commit the offence, ought to be resolved in favour of the accused person, relying on Dibie v State (2005) All FWLR (PT. 259) 1995 at 2017.

In proving a criminal charge of armed robbery, the prosecution does not need to call a host of witnesses but the prosecution is mandatorily expected to call vital witnesses to prove the commission of the alleged offences beyond reasonable doubt. It was contended that the Respondent was expected to call the vital witnesses to give credible and or corroborative evidence of the victim of the armed robbery. These vital witnesses were the vigilantes who arrested the Appellant, the Police officer who investigated the crime; evidence of the circumstances in which the Appellant was arrested, and any eye witness or other witness who should give credible evidence of the armed robbery. Reliance was placed on Nweneke v State (2019) LPELR 47018 (CA). It was submitted that the Respondent, having failed to call material witnesses, had failed to prove its case against the Appellant. The burden of proof on the Respondent had not been discharged. It was not the duty of the Appellant to prove his innocence. The vigilante men first arrested the Appellant and PW1 and took them to Igbebe Police Station, where the Appellant was detained. It was posited that the Appellant could have been detained for the offence of assault following the fight between him and PW1, and not conspiracy to commit armed robbery and armed robbery. The Vigilante men ought to have been called as witnesses to enable them give corroborative evidence in a bid to assist the Court in determining whether the Appellant was actually arrested at the scene for robbery. It was argued that the evidence of the vigilantes that arrested the Appellant was vital to proving and establishing the guilt of the Appellant, citing Ogudo v State (2011) 12 MJSC PT. 1, 108 at 112.

The Respondent failed to call the Investigating Police officer (IPO) who was also a vital and material witness to their case. It was submitted that the failure of the Respondent to ensure the attendance of the Police officer to give evidence at the trial of this case goes to show that no case of armed robbery was investigated and the Respondent has failed to prove the charge against the Appellant. Reliance was placed on Eyonaowa v COP (2014) LPELR – 22339 (CA). This leaves a prima facie doubt in the mind as to whether the Appellant committed the offence of armed robbery and whether a case of armed robbery was reported at all. The extra judicial statement of PW1 was not tendered in evidence before the Court and no exhibit was tendered in evidence. The decisions in Akinbisade v State (2006) 27 NSCQR 743 at 747; Onah v State (1985) 3 NWLR (PT. 12) 236, 237 were cited and relied on.

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There was no other evidence outside the evidence of PW1, the alleged victim, to corroborate his evidence. It was conceded that while the evidence of one credible witness, which is accepted and believed by the Court may be sufficient to justify a conviction, in the surrounding circumstances of this case, the trial Court ought to have called for further evidence outside the testimony of the victim to corroborate the evidence of PW1. The trial Court, in the circumstance of this case, ought to have been wary of accepting and convicting on the testimony of a single witness, the victim of the crime, without looking for corroborative evidence, more so, when the Appellant gave an account which is consistent with his innocence and without his testimony being discredited. The following cases were cited and relied upon: Orepekan v State (2005) 4 A.C.C.R 193; Danjuma v State (2003) 3 A.C.L.R 524; Ali v. State (2003) 3. A.C.L.R. 581. Counsel for the Appellant described the findings of the trial Court as to the guilt of the Appellant for the offences of conspiracy and armed robbery, without any credible evidence of the investigating officer on such findings in the course of investigation, as perverse.

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The Court was further invited to note that at the trial Court, the extra-judicial statement of the Appellant was not tendered in evidence, the cutlass alleged to have been used in carrying out the alleged offence of armed robbery was not tendered in evidence. No medical report on treatment of PW1 for any cutlass cut or machete cut or wound was tendered in evidence. There was also no evidence before the trial Court that PW1 picked up two passengers together at the same spot or that they were together when they boarded his motorcycle. Counsel posited that the lower Court was speculative in concluding on the guilt of the Appellant on the alleged offences by placing heavy reliance on the evidence of the PW1.

The Court was urged to set aside the judgment of the trial Court in view of the principle of justice that it is better for a thousand guilty persons to go unpunished than for one innocent person to be punished. The punishment of the alleged offence was death by hanging. In order to convict a person for such serious charge, the evidence against the Appellant must be so clear, direct and compelling that guilt is the only inference, relying on State v Nwosu (1986) 4 NWLR (PT. 35) 346. In the absence of other pieces of evidence and testimonies of material witnesses, the trial Court cannot pick and or choose which witness, whether for the prosecution or for defence, to believe as to the guilt of the Appellant, citing State v Christopher Onubogu (1974) 11 NWLR (PT. 11) 5 – 6.

Counsel further queried the identification of the Appellant by the Respondent as the person who robbed him and hurt him with a cutlass. This was in regard to his evidence that dried pepper was put in his eyes as a result of which they all fell down from the motorcycle, and this incident took place at night. Further, the Appellant in the course of trial gave account of how he was arrested, where he was arrested and what led to his arrest and those that arrested him. This evidence given by the Appellant in defence of his case at the trial Court, was not controverted by the Respondent. Such uncontroverted evidence should be accepted as proof of the fact it seeks to establish, more so when the extrajudicial statement of the Appellant was not tendered in evidence. It was submitted that the lower Court ought to have relied on the uncontroverted evidence of the Appellant and give due weight to same instead of tagging it as an afterthought citing F.C.D.A v. Nzelu (2014) 5 NWLR (PT. 1401) 565 at 581. The Court was urged to hold that the prosecution failed to discharge the burden of proof placed on it.

Counsel further emphasized that the evidence of PW1 was too remote to be solely relied upon to convict the Appellant, without the evidence of other vital and key witnesses to resolve key issues in doubt, citing Okoroji v. State (2005) 1 NCC 279 at 294 – 295. All doubt or contradictions should be resolved in favour of the Appellant, relying on F.R.N v. Abubakar (2019) 7 NWLR (PT. 1670) 113 at 129. Counsel posited that if all such doubts were resolved in favour of the Appellant, the doubts on the entire evidence of PW1 would portray same as unreliable and unjustifiable. The Court was urged to allow the appeal and set aside the judgment of the trial Court.

For the Respondent, it was conceded that the prosecution in a criminal trial is required to establishing the guilt of the accused person beyond reasonable doubt, citing Abirifon v State (2013) NWLR (Pt 1372) 587; Ankpegher v State (2018) LPELR-43906 (SC). On the offence of conspiracy, reliance was placed on Bello v State (2010) 12 SCM (PT 2) 28 at 34 to submit that the offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the person had not met each other. Concluded agreements can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy, relying on Simon v State (2018) LPELR-45998(CA). Counsel for the Respondent relied on the evidence of PW1 to argue that the common purpose of the Appellant and the other passenger was to rob PW1, which was carried out by their act of rubbing a substance described as dried pepper and soap on PW1, followed by the infliction of machete cut on him and ultimately the taking away of his motorcycle belonging to PW1, established ingredients of conspiracy. The Court was urged to infer conspiracy therefrom and to hold that the Appellant did conspire with another person at large to commit the offence of armed robbery.

The Respondent further argued that the ingredients of armed robbery, as espoused in the case of Adekoya v State (2010) LPELR 3604 (CA), were established by the evidence of PW1. By the same testimony of PW1, the identity of the Appellant was established. It was submitted that the evidence of a single credible witness can establish a case beyond reasonable doubt. The eye witness who doubled as the victim of a crime gave evidence fixing the Appellant to the scene of crime, thereby establishing the identity of the Appellant. The decision in State v Suleiman & Ors (2018) LPELR-45636 (CA) was cited and relied on in submitting that the trial Court was right in relying on the evidence of PW1. A single credible witness can establish a case beyond reasonable doubt unless where law requires corroboration. The Court was urged not to disturb the decision of the trial Court but to dismiss this appeal and affirm the decision of the trial Court.

Resolution

It is well settled in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt. See Ogundiyan v. State (1991) LPELR-2333(SC), [1991] 1 NSCC 448.

While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. See Ayinde v. The State (2018) LPELR- 44761(SC); Abokokuyanro v. The State (2016) LPELR-40107(SC) ;The State v. Musa Danjuma (1997) LPELR-3216(SC). By virtue of the unequivocal provisions of Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended, an accused person is presumed to be innocent until his guilt of the offence is established.

A plethora of judicial pronouncements have established that proof beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035(SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. (now CJN) in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373 and cited with approval in Agbo v. State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242(SC) at page 48 of the E-Report, was given in this manner:

“Proof beyond reasonable doubt does not mean proof beyond the shadow of a 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.”

In Shande v State (supra), an explanation for the phrase proof beyond reasonable doubt was expressed by the noble Lord, Pats-Acholonu, JSC thus, page 19 of the E-Report:

“…proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”

See also Udo v. State (2006) 7 S.C. (PT. II) 83.

‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness.

The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed. See Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Ime Idiok v. State (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required.

Thus, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.

The guilt of an accused person can be established by:

1. His direct, positive and voluntary confessional statement;
2. Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.

See Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra).

Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, which provides that:

(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.

The Appellant was charged with criminal conspiracy and armed robbery under Section 21 of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016, punishable under 16(1) (a) & (b) which provides as follows: –

1. Any person who commits robbery while armed,

(a) with any firearms or any offensive weapon or who is in company with any person so armed; or

(b) at or immediately before or immediately after the time of the robbery, the said offender wounds or uses any personal violence with any person, is guilty of an offence of armed robbery and liable upon conviction under this law to be sentenced to death.

Section 21 thereof provides:

6. Any person who –

(a) aids, counsels, abets or procures any person to commit an offence under Sections 15, 16, 17, 19 and 20 of this Law; or

(b) conspires with any person to commit such an offence; or

(c) or supplies, procures or provides any person with firearms for use to commit an offence under Section 16 of this Law, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this law.

In order to secure conviction for the offence of armed robbery, prosecution must prove, beyond reasonable doubt, the following elements of the offence:

1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.

See: Dawai v. State (2017) LPELR-43835(SC); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction. See Ugboji v. State (2017) LPELR-43427(SC). It is now to see if these elements were proved by the Respondent as required by law.

That there was a robbery

The evidence of the complainant, PW1, which was not controverted under cross-examination, was that he was violently dispossessed of his motor bicycle with Registration Number LAR 239 WM, and his Techno phone. Although the charge the Appellant faced also included robbery of the sum of N75,000.00 and a pair of shoes, these items were not mentioned by PW1 in evidence as part of his loss.

That the robbery was an armed robbery and that the accused person was the robber or one of those who took part in the armed robbery. I shall consider these two elements together in view of the evidence adduced. Armed robbery means simply stealing plus violence, used or threatened. The offence of armed robbery is committed when the offender is armed with any firearms or any offensive weapon or is in company with any person so armed, or at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person. See Aruna v. The State (1990) 6 NWLR (Pt.155) 125; Tanko v. State (2009) (2009) LPELR-3136(SC).

The evidence of PW1 was that dried pepper and soap were put in his eyes by the other passenger, who he had carried with the Appellant, as a result they all fell off the motor bicycle. The Appellant then attacked him with a cutlass, while the other passenger made away with the motor bicycle. The Appellant as DW1 completely denied this account. He testified that his wife was sick. He needed to get some herbs for her and took his cutlass. He rather said he was the sole passenger on the motor bicycle and had a dispute with PW1 over the fare charged when he got to his destination, which led to fisticuffs. As they fought, his cutlass fell down. He denied that he made any statement at the police station. PW1 under cross-examination said, page 10 of the Record of Appeal:

“The defendant matcheted me on my head and right hand from when the defendant matcheted me I had scares (sic) on my body.”

The lower Court registrar, who was directed by the learned trial Judge to look for the scars, found no scar on the head of PW1 but confirmed a scar on his right shoulder.

The prosecution is required to prove that a weapon capable of causing grievous harm was involved in the robbery. An offensive weapon has been described as any article made or adapted for use for causing injury to the person being robbed or intended by the person having it for such use by him. See State v. Fadezi (2018) LPELR-44731(SC); Sowemimo v. State (2010) LPELR-4972(CA).

The offensive weapon alleged to have been used here is a cutlass. Section 2 of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016 classified cutlass as an offensive weapon.

There is no doubt that while the major use of a cutlass may not be as a weapon of attack, a cutlass could be used as an offensive weapon. See Kayode v The State (2012) LPELR-7999(CA). As expressed by Olatawura, JSC in Sele v State (1993) 1 NWLR (PT 269) 276, (1993) LPELR-3030(SC) at page 23:

“A farmer is allowed to carry his cutlass, a butcher is allowed to carry his knife, but where the cutlass or the knife is put into unlawful use e.g. stabbing with the intention to facilitate the commission of a crime, the weapon therefore becomes an offensive weapon. It is the use made of the weapon and the manner it is used that qualifies it to be an offensive weapon.”

See also Dibie v The State (2007) LPELR-941(SC).

A cutlass may have a sharpened edge or dull edge. PW1 testified:

“He used a long cutlass which has only one sharp side.”

The cutlass was not tendered in evidence. It must be emphasized that there is no principle of law requiring that the weapon used in armed robbery must be tendered to prove the offence and secure a conviction. See Adisa v The State (2018) LPELR-46340(SC); Awosika v The State (2018) LPELR-44351(SC); Sadiku v The State (2011) LPELR-4912(CA); Esene v The State (2013) LPELR-20699(CA). If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, cannot be basis of acquittal; Olayinka v The State (2007) LPELR-2580(SC); John v. The State (2019) LPELR-46936(SC). The evidence must be such that there is cogent, reliable and authentic oral and documentary evidence which the Court believes and admits. See Simon v State (2017) LPELR-41988(SC); Adeyemo v State (2010) LPELR-3622(CA). I shall return to this point.

The prosecution must also prove that the accused person was the robber or one of those who took part in the armed robbery. This is a fundamental requirement, because while there may have been a robbery in which the robber(s) was armed, if the accused person was not proved to have been one of the armed robbers, he cannot be lawfully convicted.

It is crucial to examine the evidence adduced by the Respondent. PW1 testified that he and the Appellant were separated in their fisticuffs by vigilante men and were both taken to the Police Station at Igbeba. The Appellant was detained while he, PW1, left for the hospital. DW1 said, page 13 of the Record of Appeal:

“The place where we fought was not far from the commercial motorcyclist garage. Other commercial motorcyclists came to the scene and called the name of motorcyclist who was engaged in a fight with me. They all stared to be me (sic) accusing me as one of the thieves who steal motorcycles. The vigilante groups in the area came and met us at the scene and took us to the Police Station at Igbeba…The incident happened at about 5pm.”

PW1 had testified that the incident took place at between 8pm – 9pm. This difference is crucial. 5pm, when it is not usually dark, is a far cry from 8pm – 9pm, when it is usually quite dark.

Further, while PW1 said he was attacked by the Appellant and the other passenger, at large, the Appellant as DW1 denied that there was any other passenger. PW1 said that dried pepper and soap were put in his eyes by the other passenger. Under cross-examination, he said, page 9 of the Record of Appeal:

“It is correct that initially when pepper was put in my eyes I could not see, it was when I got up and cleaned my eyes with my hand that I could see slightly.” There was no evidence of how he realized that the substance allegedly placed in his eyes was a combination of dried pepper and soap, and merely cleaning his eyes with his hands cleared his vision! It is also curious that he had time to clean his eyes with his hands since his evidence was that after the substance was poured into his eyes, they all fell to the ground, where he was macheted by the Appellant with a cutlass while the other passenger took away his motorcycle.

PW1 testified that he had scars on his head and right hand from the cuts alleged to have been given to him by the Appellant with his cutlass. But, while the trial Court found no scar on his head, it found a healed round scar on his right shoulder, which without more, does not prove it was the cut from a cutlass by the Appellant. PW1 in evidence said he was treated at General Hospital, Ijebu Mushin. He said he was given a Police Form to take to the Hospital. The form was not tendered in evidence. The degree of injury that resulted from the alleged cutlass cuts by DW1 was therefore not in evidence.

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There was no evidence from any Investigating Police Officer on the arrest or detention of the Appellant. There was no investigation report or extra judicial statement alleged to have been made by the Appellant tendered in evidence.

The learned trial Judge held, page 40 of the Record of Appeal:

“The evidence the vigilante men would give had been given by both the PW1 and the defendant, I do not think the failure to call the vigilante men can be regarded as fatal to the case presented by the Prosecution.

The learned defence counsel also argued that failure to call the IPO shows the case was not investigated. The Principal State Counsel answered this submission that the inability to call the IPO was brought to the notice of the Court. I feel constrained to explain further that only two witnesses were listed on the Information Paper, the complainant and the IPO. The case had suffered several adjournments. The Court had a backlog of cases because the Court barely sat in 2019 as I was on a national assignment in Calabar, on the day the Court closed the case of the prosecution the learned Principal State Counsel still asked for another adjournment but the adjournments was refused.” She further held, page 43 of the Record of Appeal:

“The vigilante men met both parties in the ensuing scuffle and they took both of them to the police station. In this case, the involvement of the police came later.”

With due respect to the learned trial Judge, the gravity of the offence and the punishment prescribed by law compelled more detailed consideration of the evidence adduced by the trial Court. In the first place, PW1 and DW1 were not in agreement as to the time the incident took place and on whether there were two passengers or just one person, being the Appellant. Further, DW1 testified that he was also bloodied in the fight with PW1, that the blood on his body was seen by the police when he was taken to the station by the vigilante men. The Court cannot speculate on whether a wounded and unarmed victim was able to also inflict injury on his alleged assailant. Evidence from at least one of the vigilante men who separated their fight would have corroborated the time that the incident took place and, given details of any injuries sustained by both or either of them. The evidence of the IPO, which was foreclosed by the learned trial Judge, was also important.

The IPO would have availed the trial Court of a report of his investigation of the incident.

The learned trial Judge found the evidence of PW1 credible, holding, page 42 of the Record of Appeal:

“I am convinced from the evidence of PW1 that the defendant was one of the armed robbers who attacked him on the day of the incident…”

The Appellant was thereupon convicted on the charges of conspiracy to commit armed robbery and armed robbery. It is important to note that the Appellant was charged with robbing PW1 of a motorcycle Number LAR 239 WM, a Techno phone, N75,000.00 and a pair of shoes. However, PW1 gave no evidence of losing the sum of N75, 000.00 and a pair of shoes to the Appellant and his alleged accomplice. Thus, without any evidence from the complainant, PW1, on the loss of these items, the Appellant stood convicted by the trial Court for the offences as charged.

It must be emphasized that although the established position of the law is that there is no obligation on the prosecution to call a host of witnesses, the quality of evidence from the witness called must be such as can sustain the charge. See Odili v The State (1977) LPELR-2221(SC); Olayinka v The State (supra). I am of the considered view however that the state of the evidence adduced by the Respondent, which was solely the evidence of PW1, was not such that could with certainty result in a positive conclusion against the Appellant.

Armed robbery is a capital offence. Before one is sent to the gallows, the nature of the evidence ought to expose the guilt of the accused person beyond reasonable doubt. See Akwuobi v. State (2016) LPELR-41389(SC). There must be no other rational conclusion that could be drawn from the evidence other than the guilt of the accused person. Our explicit Constitutional provisions are unambiguous in the protection of the rights of an accused person. The provisions of Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and, of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, have received judicial interpretation. See Williams v State (1992) LPELR-3492(SC); Ajayi v. The State (2013) LPELR-19941(SC); Ogu v. Commissioner of Police (2017) LPELR-43832(SC). One undebatable consequence of these provisions is that until the allegation of the commission of a crime by an accused person is absolutely proved beyond reasonable doubt by the prosecution, the accused person must be presumed to be innocent of the crime. In Williams v. The State (supra), the Apex Court, per Kutigi, JSC (as he then was) stated clearly, page 9 of the E-Report:

“There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a law Court. For the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt.”

In this light, the Court cannot unravel by speculation, evidence which is foggy or vague in any particular in order to declare the guilt or otherwise of an accused person. That would be akin to working from an answer to the question. Indeed, any fogginess or inconsistency in evidence adduced against an accused person ought to be resolved in his favour. It is well settled that when there are doubts created in the mind of the Court as to the culpability of the accused person, these doubts ought to be resolved in favour of the accused person. See Federal Republic of Nigeria v. Mohammed Abubakar (2019) LPELR-46533(SC); Afolahan v. State (2017) LPELR-43825(SC); Oforlete v. State (2000) LPELR-2270(SC); Okonji v The State (1987) LPELR-2479(SC). In Nwosu v State (1986) LPELR-2134(SC) at page 20, the Noble Law Lord, Aniagolu, JSC eloquently put it this way:

“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.”

The underlying established consideration has always been that it is better for ten guilty men to escape justice than for an innocent man to be condemned unjustly. See Shehu v. The State (2010) LPELR-3041(SC). The Supreme Court, per Obaseki, JSC, in Saidu v The State (1982) LPELR-2977(SC) at page 28-29, graphically proclaimed:

“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in our streets and thread the Nigerian soil and breathe the Nigerian air as free and innocent men and women.”

It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged. On this issue, the apex Court, per Obaseki, JSC in Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333(SC) at pages 13-14, said:

“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said:

“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F & F 383 at 384 where the learned Baron said: –

In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.”

(Emphasis mine).

It is on the above considerations that I find that I am unable to agree with the conclusions of the learned trial Judge on the conviction and sentence of the Appellant for the offences of conspiracy or armed robbery.

There is therefore merit in this appeal. The appeal succeeds and is hereby allowed. The conviction and sentence of the Appellant by the High Court of Justice, Ogun State, sitting at Ijebu Ode delivered on 20/8/2020 is hereby set aside. The Appellant is accordingly discharged and acquitted.

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Others: CA/IB/370C/2020