Victor Essien Victor V. The State (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the decision of Justice Enefiok Udoh sitting at the High Court of Justice, Eket Judicial Division of Akwa Ibom State, in charge No. HEK/7C/2002 delivered on 27/7/2006.
The facts of this case are that the appellant Victor Essien Victor and three others were alleged to have broken into and entered No. 1 Bassey Ekanem Street Eket on the 22/6/2001 and robbed the residents thereat of their properties and money while armed with guns, matches and other offensive weapons. They also beat up the victims. The appellant and the other three co-accused persons were arrested and arraigned before the Court for the offence of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, volume 22, Laws of the Federation of Nigeria, 1990. Four witnesses testified for the prosecution in support of the charge. The appellant testified on his own behalf and called no witness. At the conclusion of hearing, the learned trial Judge found the appellant and the 2nd accused guilty, convicted them and sentenced them to death. The 3rd and 4th accused persons were discharged and acquitted.
Aggrieved by the decision of the trial court, the appellant appealed to this Court on four grounds subscribed in his notice of appeal filed on 9/9/2008, but deemed properly filed by this Court on 14/01/2009. In his brief of argument dated 27/1/2009 and filed on 28/1/09, the appellant distilled two issues for determination from the four grounds of appeal.
The issues are as follows:-
1. Whether from the totality of evidence before the trial Court the prosecution had proved the charge of armed robbery against the appellant beyond reasonable doubt.
2. Whether the testimonies of tainted witnesses can be used without caution as part of the evidence to convict.
Issue No. 1 is distilled form grounds 1, 3 and 4 of the Notice of Appeal while issue No.2 is distilled from Ground 2.
The respondent in his brief of argument dated on 23/2/2009 and filed on 24/2/2009 formulated only one issue for determination. This issue is as follows:-
1. Whether the conviction of the appellant herein by the learned trial Judge was proper in the circumstances of this case and having regards to the evidence led at the trial court.
The appellant did not file a reply brief. The appellant’s brief was settled by Chief Orok Ironbar. At the hearing of the appeal, Miss Ene argued the appeal and took the two issues together. She referred to Section, 138 (1) of the Evidence Act Cap E. 14, Laws of the Federation of Nigeria, 2004 and the cases of Bakare v. State (1987) 1 NWLR (Pt. 52) 579 and Odili v. State (2005) 1 NCC 143 at 765 and submitted that the prosecution must prove the charge against the appellant beyond reasonable doubt. Learned counsel submitted that the appellant made three statements to the police on 22/6/2001, 4/7/2001 and 18/7/2001 but the police only tendered the statement made on the 22/6/2001 and left out the other two. She contended that the prosecution was obliged to tender all the statements made by the appellant as was held in Okere v. State (2001) FNLR (Pt. 70) 1652. She then submitted that by refusing to tender the other statements, the prosecution knew that tendering same would have tilted the scale in favour of the appellant and that by Section 149 (d) of the Evidence Act Cap F. 14, L. F. N. 2004, there is a presumption that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it. She relied on R vs. Subramanian (1934) 25 CR. App R. 109 and concluded that the prosecution under our law owes a duty to the court to present all relevant facts and evidence available to them before the court, whether favourable or unfavourable.
Miss Ene submitted that from the statement made on 22/6/2001, the appellant raised the defence of alibi but the police did not investigate it.
She then submitted that failure to investigate and disprove the alibi is fatal to the case of the prosecution. She relied on Dagaya v. State (2005) N.C.C. 532 at 534, Ukers Iina v. State (2003) FWLR (Pt. 137) F 719. George v. State (2009) NWLR (Pt. 1122) 325, Aigworeghian v. State (2004) 3 JSC 77.
Learned counsel further submitted that the prosecution did not put enough convincing material before the Court to show that the alleged armed robbery actually occurred. She was of the view that the IPO testified that he visited the scene of crime and saw the damaged door of the house and window belonging to PW1’s neighbour yet he did not tender any part of the broken door or window nor a photograph of the scene in the Court, to prove that the robbers made forceful entry into the apartment as claimed by the complainants. She also pointed out that PW1’s wife who owned the bulk of the money allegedly stolen and was present during the alleged robbery neither made statement nor testified in the case. Counsel relied on Onah v. State (1985) 3 NWLR (Pt. 12) 233 and submitted that although the prosecution has the discretion to call whichever witnesses it considers necessary, its failure to call very vital witnesses whose evidence may determine the case one way or the other, is fatal to the case because it would be presumed in line with Section 149 (d) of the Evidence Act, that had the witness been called, her evidence would have been unfavourable to the case of the prosecution. Counsel contended that PW1 did not describe the clothes the appellant wore at the scene of the robbery. He relied on Abdullahi v. State (2008) 17NWLR (Pt. 1115) 203 at 216 on this point.
She concluded that the police conducting an identification parade for the witnesses, who had earlier arrested the appellant, were biased against the appellant and must have by then known him very well, was prejudicial and calculated to nail the appellant no matter what. Such identification must be discountenanced. She then urged the Court to set aside the decision of the lower court and quash the conviction and sentence on the appellant. The brief of the respondent was settled by the Honourable Attorney-General for Akwa Ibom State, Chief Victor Iyanam, but at hearing of the appeal even though the respondent was served, he was absent from court.
The appeal was deemed properly argued pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules, 2007.
In arguing the only issue formulated by the respondent, it was submitted that the prosecution established the case against the appellant and as required by law. The prosecution made all available documents on the case at its disposal available to the defence even before the matter was heard in court. He pointed out that the prosecution filed and served the information in this case with the accompanying statements of each of the accused persons and the prosecution witnesses.
On the issue of alibi raised by the appellant’s counsel, the respondent submitted that where there is a direct and positive evidence of witnesses fixing the accused to the crime, the plea of alibi collapses and, it is dislodged by such direct and positive evidence. There is no duty on the police to investigate such as same is thereby physically and logically demolished and the plea of alibi rendered ineffective. He relied on Njovens v. State (1973) NMLR (Vol. 1), 333, Adepetu v. State 4 NWLR (Pt. 235) 267 at 269, Akpan v. State (2004) 5 SCNE, Balogun v. A.G. Ogun State (2007) 2 SCNJ 196 at 203.
Counsel pointed out that PW2 testified that he went to the appellant’s father’s house in company of the appellant, where the appellant said he was, only to be told by the said father that the appellant did not live there and was not there and had no business in the premises.
Furthermore, learned counsel contended that the appellant did not raise a plea of alibi properly because he gave different and inconsistent places as to where he was on that date and in the night. It was also contented that the learned trial Judge did not rely on the confession of the appellant but on the direct and positive evidence of witnesses in convicting the appellant. It was only the 2nd accused that made a confessional statement. It was contended for the respondent that Section 149 (d) of the Evidence Act, 1990 is inapplicable in the instant case on appeal as the prosecution concealed nothing from the defence at the trial. Respondent submitted that there was enough evidence of armed robbery and the accused persons were armed with guns, matchet and other offensive weapons. There is evidence that they forcefully entered the rooms of the victims and carted away, cash and properties and these facts were not challenged, therefore the learned trial Judge rightly accepted the unchallenged evidence of prosecution witnesses as it was done in Oforlette v. State (2000) FWLR (Pt. 12) 2081 at 2083.
On the issue of witnesses, it was contended that the law does not require the prosecution to field the whole eye witnesses to the crime to establish the case beyond reasonable doubt but such that will be enough to establish same. Respondent submitted that even a lone witness is enough where no corroboration is required, as was held in Akinyemi v. State (1991) 6 NWLR (Pt. 607) 455. It was concluded that though the wife of PW1 was a victim and an eyewitness, PWS 1, 3 and 4 were also victims and eyewitnesses to the crime and they also testified and gave sufficient account of what transpired on that day. The prosecution then urged the Court to dismiss the appeal and uphold the judgment of the trial court.
I have adopted the issues formulated by the appellant in this appeal and I shall rely on them for the determination of the instant appeal.
Before going into the substance of the case, there is, a collateral issue that I must point out. Having carefully perused the record I observed that the appellant did not distill any issue for determination from ground No. 1 in the notice and grounds of appeal, at page 114 of the record. Where no issue is raised in respect of a ground of appeal, it is deemed abandoned and should be struck out. See Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 and 83, Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506 at 525, Ibrahim v. Mohammed (2003) 6 NWLR (Pt. 817) 615. In the circumstanced ground No. 1 of the grounds of appeal is hereby struck out.
In all criminal trial the burden is always on the prosecution to prove the guilt of the accused person, beyond reasonable doubt. See Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 223. Where an accused person is charged with the offence of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act, Cap 398, it is the duty of the prosecution to establish or prove by credible evidence the following ingredients beyond reasonable doubt, to wit:
1. that there was a robbery or series of robberies;
2. that the robbery was armed robbery;
3. that the accused person was one of those who took part in the armed robbery or robberies.
See Dibie v. State (2004) 14 NWLR (Pt. 893) 257; Bozin v. State (1985) 2 NWLR (Pt. 8) 405.
In furtherance of the above, the prosecution called four witnesses, to prove its case against the appellant and the 2nd accused, PW1, Shadrack Sam testified at pages 39 to 44 of the record to the effect that there was a series of robberies at his compound at No. 7 Bassey Ekanem Street, off Edoho Eket Street, Eket, between 2.35a.m to 3.30a.m on the 22/6/2001. PW1, testified that the appellant broke the door leading to his room and demanded for the sum of N50,000.00. He told the appellant that he had no money but he later gave him the sum of N3,500.00. The appellant demanded for more money.
The 2nd accused came in to his room and ransacked his bag and removed the sum of N71.000.00. 2nd accused also took his bag worth N700.00 and a walk man radio worth N1,750.00.
The evidence of PWI was corroborated by the evidence of PWS 3 and 4.
PW3 testified at pages 57, lines 29 to 31, of the record that the appellant and the 2nd accused broke into his room and stole his pair of black shoes worth N3,500.00.
PW4, testified at page 62, lines 25 – 26 of the record, that the appellant stole the sum of N500.00 from his locker.
The evidence of PWS 1, 3 and 4 was not challenged or contradicted on this point all through the trial at the court below. They were not shaken under the search light of cross-examination. The evidence of PWS 1, 3 and 4 is not of poor quality. It is credible and reliable therefore it should be believed and accepted. Where evidence of a witness is uncontradicted or unchallenged, that is the evidence that the court would relate to the applicable law. See Aigbadion v. State (2000) 7 NWLR (Pt. 666) page 686 and State v. Oka (1975) 9 – 11 SC 17. In Nwede v. State (1985) 3 NWLR (Pt. 13) 44, the Supreme Court Page 8 held that:-
“Where a piece of evidence is not challenged or contradicted such evidence will be accepted as proof of a fact it seeks to establish.
See also Babalola v. State (1989) 7 SCNJ 127 and Okon v. The State (1989) SCNJ 183.
Accordingly, I find that the prosecution has proved that PW1, 3 and 4 were robbed on the 22/6/2001 at about 2.35a.m to 3.30am at No.1 Bassey Ekanem Street, off Edoho Eket Street, Eket.
On the second ingredient of the offence of armed robbery, there is the evidence of PWS 1, 3 and 4 which clearly and unequivocally proved or establish that the robbery was an armed robbery PW1 testified that both the appellant and the 2nd accused were armed with guns which they used during the robbery.
PW3 also testified that the appellant and the 2nd accused were both armed with guns when they robbed him in his room.
PW4 testified also that the appellant and the 2nd accused were armed with guns. He further testified that the 2nd accused picked up a kitchen knife from his room and threatened to stab him with it. PW4 held on to the knife to prevent the 2nd accused from stabbing him and he got injured in his hand.
Again PWS 1, 3 and 4, were not challenged, or contradicted nor shaken under cross-examination. The evidence of PWS 1, 3 and 4 in this respect is credible and reliable and it is of probative value.
On the third ingredient of the offence, the evidence of the prosecution witnesses, particularly PWS 1, 3 and 4 firmly and clearly prove that the appellant was among those who took part in the armed robbery. PW1 in his testimony properly identified the appellant whom he knew before the robbery incident. PWI testified that the appellant lives in the same compound with him so the appellant is not a stranger to PW1.
PW3 also testified that he knew the appellant before the robbery and that the appellant had once done a job on his door to his house in the past.
Furthermore, it was PWS 1, and 3 that went to search for the appellant.
When the appellant saw PWS 1 and 3 coming for him, he ran and hid himself in toilet in the premises. PWI after a while piped through the keyhole and found him lying down on the floor of the toilet. PWS 1 and 3 arrested the appellant and handed him over to the police. Ordinarily, the sudden flight or escape of an accused may not necessarily be evidence of his guilt. See Opara v. State (2006) 8 NWLR (Pt. 986) 526. In that case after the Commission of murder, the appellant said that he ran away like some other youths of the village to avoid indiscriminate police arrest. Aderemi, JCA (as he then was) held that the fact that the appellant ran away to escape arrest after the incident was no proof of his guilt. See also Akinsanya v. State (1961) WRNLR 22. However, each case should be decided on the basis of its own peculiar facts and circumstances.
In the instant case, PWS 1 and 3 are not policemen; they were infact the neighbours of the appellant so why would the appellant run away on sighting PWS 1 and 3 who were his neighbours and victims of the robbery committed in the early hours of the morning.
Secondly, the appellant did not run away with any other person or persons. He took the sudden flight alone.
Thirdly, the appellant’s choice of a hiding place, the floor of a toilet, is indicative of the fact that the appellant was desperate to escape from PWS 1 and 3. This is clearly suggestive of the guilt of the appellant. See Ukoh v. State (1971) 1 NMLR 140.
It is also significant that PWS 1, 3 and 4 all testified that at the time of the robbery there was electric light and the appellant and the 2nd accused were not wearing masks, so it was easy to identify them.
Moreover, the robbery lasted from 2.35a.m to 3.30am, which meant that PWS 1, 3 and 4 had ample time and opportunity to observe the features of the appellant and the 2nd accused. More importantly, the appellant admitted that he knew PWI before the robbery in his statement to the police made on 4/7/2001, to wit; Exhibit I and also in his evidence as DW1, which appears at page 76, line 26 of the record. That being the case the identify of the appellant was never in doubt.
The requirement of identification parade becomes spent where there is good and cogent evidence linking the accused person to the crime on the day of the incident. An identification parade is not necessary when the accused in his statement to the police and in his evidence in Court admitted that the PWS 1 and 2 knew him. An identification parade is not a sine qua non, to a conviction for a crime alleged. See Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 at 452. Archibong v. State (2004) 1 NWLR (Pt. 855) 488. It is only essential 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 accused for a very short time; and
(c) the victim due to time and circumstances might not have had full opportunity of observing the features of the accused.
It is important that I say that none of the above situations are manifest in the instant case on appeal.
Where no dispute arises as to the identification of an accused person by a witness, there is no reason why his evidence alone, if believed, cannot ground or sustain a conviction even on a charge of armed robbery.
A Court is perfectly entitled to convict on the evidence of one witness if his evidence is credible, admissible and it is believed and accepted by the trial Court. Infact a lone witness if believed can establish the crime of armed robbery. In the instant case on appeal the evidence of PWS 1, 3 and 4 led to the guilt of the appellant. Their evidence was cogent, unequivocal positive and conclusive it was believed and accepted by the trial Court. See Idiok v. State (2006) 12 NWLR (Pt. 993) 1 at 29; State v. Igbo (1975) and SC 129; Ali v. State (1988) 1 NWLR (Pt. 68) 1; State v. Ayie (2000) 11 NWLR (Pt. 134). There is the uncontradicted evidence of PWS 1, and 3 and the identity of the appellant. A trial Judge has no choice, but to accept the unchallenged evidence of a witness which is not patently incredible as to defy logic and common sense as to be classified as a fantasy. See Nwuguru v. State (1997) 1 NWLR (Pt. 165) 41 at 48.
The case of Abadullahi v. State (supra) cited by the counsel for the appellant, though very instructive and illuminating and very sound is not relevant or applicable to the facts of this instant case on appeal and it is quite distinguishable. In this case there is sufficient and overwhelming evidence of the identity of the appellant.
It is therefore clear that the prosecution proved its case beyond reasonable doubt.
Proof beyond reasonable doubt is not proof beyond all shadow of doubt, See State v. Usman (2005) 1 NWLR (Pt. 906) 50, Agbo v. State (2006) 6 NWLR (Pt. 977) 545.
Learned counsel for the appellant dissipated so much energy on the issue of the alibi raised by the appellant whom he alleged was not investigated by the police.
In establishing the defence of “alibi” it is not as if the accused person has no duty to discharge than mere assertion of being elsewhere when the offence was committed. An accused person is duty bound to furnish the necessary information in detail from which his where about at the crucial time can be checked. Where he fails to discharge that basic duty he cannot avail himself of the defence. See Idiok v. State (supra) at page 30.
Now, what is ‘alibi? The word “alibi” literally means elsewhere. Thus when an accused person’s defence to a criminal charge is alibi, he is saying that he was at another place at the time material to the charge. See Ogoala v. State (1991) 2 NWLR (Pt. 175) 509 at 521; Gachi v. State 1965 NWLR 337(sic); Ozaki vs. State (1990) 1 NWLR (Pt. 247) 92.
In short alibi means that the accused was somewhere other than where the prosecution said he was at the time of the commission of the offence alleged, consequently he could not have committed or participated in the commission of the offence with which he is charged, See Idiok v. State (supra) at pages 30 -31.
In the instant case on appeal, the appellant was not consistent with his story on his alibi. In Exhibit 7, the statement of the appellant made on 4/7/2001, he said as follows:-
“On this 22/6/2001, I left my house at NO.1 Edoho Street, Eket to No. 32 R.C.C. Road, Eket at about 4p.m in the evening and I slept there till 23/6/2001 and I left the premises at about 9a.m, in the morning of 23/6/2001.
However, while testifying at page 75 of the record as DW1, the appellant said.-
“On the night of this incident, my step mother was in our house, she was sleeping in the bedroom where all of us slept …. I told the police that on the night of the incident, 1 was sleeping in my father’s bedroom.
Obviously, the two stories are contradictory, mutually exclusive and mutually repugnant. It is not possible for the appellant to be at No. 32 R.C.C. Street, Eket, where he said he slept till 9a.m and at the same time sleep with his father and step mother in the same room in his father’s house at No.1 Edoho Street, Eket, on the 22/6/2001. Where an accused person raises two alibis which are irreconcilable in conflict, there is no duty on the prosecution to investigate the alibi which must therefore be deemed not established as the accused is deemed to have failed to discharge the evidential burden placed on him of adducing or eliciting some evidence tending to establish his alibi at the time of the offence charged. See Adetola v. State (supra), Ozaki vs. State (supra) and Adio v. State (1986) 3 NWLR (Pt. 31) 714.
Secondly, the investigating Police Officer who testified as PW2, stated at page 4 lines 1 – 6 as follows:-
“I took the 1st accused to his father’s compound at No.1 Edoho Eket Street, Eket to execute a search warrant in his house. 1 did not execute the search warrant because the 1st accused’s father told me that the 1st accused did not reside in his building… ”
The above evidence further indicates that the purported alibi raised by the appellant is not worth the paper on which it is written and it is nothing but a figment of the appellant’s imagination.
Now, where three credible witnesses give evidence which fix the accused to the scene of crime, the defence of alibi collapse and is dislodged by such evidence. There is no duty on the prosecution to investigate such as same is thereby physically and logically demolished and the defence rendered ineffective. See Akpan v. State (2002) 5 SCNJ 301 at 305 and Balogun v. A. G. Ogun State (2002) 2 SCNJ 196 at 203. Peter v. State (1997) 3 SCNJ 48 at 62 and 63; Ogoala v. State (1991) 2 NWLR (Pt. 175) 509 at 521 and Yanor v. State (1965) NMLR 337. In the instant case on appeal, the trial Judge believed the evidence of PWS 1, 3 and 4 who identified the appellant as one of the robbers who attacked them in the early hours of 22/6/2001. The appellant himself in Exhibit 1, his statement to the police made on 4/7/2001 and in his evidence in the trial court admitted that he knew PWI before the incident. The evidence of PWS 1, 3 and 4 fixed the appellant to the scene of crime. See further Ani v. State (2003) 11 NWLR (Pt. 830) 142; and Ntam v. State (1968) NMLR (Pt. 86) and Odu v. State (2000) 7 NWLR (Pt. 664) 283. That being the case, the plea or defence of alibi is not available to the appellant.
Learned counsel for the appellant, also submitted that the prosecution merely selected and tendered only the statement favourable to their case and kept back those unfavourable. Having carefully examined the record of appeal, it is my finding that the submission of learned counsel is misconceived. The prosecution concealed nothing in the case. The information filed and served on the defence contained all the statements at the disposal of the prosecution. See pages 2 – 34 of the record. In the circumstances, it cannot be said that the prosecution was selective in their treatment of all statements made. Having attached all the statements to the information filed for the trial of the appellant and other accused persons, there was nothing stopping or preventing the appellant’s counsel from tendering any statement relevant and necessary for his defence. Like it was held in R v. Sularman (supra), the business of the State counsel/prosecution is fairly and impartially to exhibit all the facts to the trial court. This is exactly what the prosecution did. The provision of Section 149 (d) of the Evidence Act, 1990, is irrelevant and inapplicable to the facts of the instant case on appeal.
Learned counsel for the appellant relying on the case of Onah v. The State (supra) and the provisions of Section 149 (d) of the Evidence Act, submitted that the prosecution failed, refused or neglected to call vital witness, namely, the wife of PW1, who was an eye witness to the robbery. It has been held in a plethora of cases that the duty on the prosecution in criminal cases is not to call every eye witness to the offence but to call enough witnesses to enable it discharge the onus of proof incumbent on it to prove its case beyond reasonable doubt. See Ogoala v. State (supra), Saidu v. State (1982) 4 S.C. 41 at 68 – 69; Udofia v. State (1981) 11 – 12 SC 49; Okpulor v. State (1990) 7 NWLR (Pt. 164) 582 at 593. In Okere v. State (2001) 2 NWLR (Pt. 697) page 397 at 415, the court held that:-
“The prosecution is not bound to call a host of witnesses to prove its case. Once the prosecution calls necessary witnesses to give evidence of relevant facts that sustain the charge against an accused person, its duty has been discharged. This is because the credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The crucial question is whether the evidence of one credible witness on a particular point is believed and accepted. If the answer is in the affirmative, then it is sufficient to justify a conviction…”
See further Opeyemi v. The State (1985) 2 NWLR (Pt. 5) 101 and Gira v. The State (1996) 4 NWLR (Pt. 443) 375. In the instant case on appeal, even though the wife of PWI was a victim and an eyewitness, PWS 1, 3 and 4 were all victims and eyewitnesses and they gave detailed and sufficient account to establish the case for the prosecution. There is nothing in the record suggesting that the wife of PW1 had special evidence to give which will help the court to decide the case one way or the other. The facts of this case are clearly distinguishable from those in Onah v. State (supra) and the provisions of Section 149 (d), which has been over flogged by the learned counsel for the appellant, is not applicable to this case. See Akalonu v. State (2002) 6 SCNJ 332 at 377. In Ekpenyong v. State (1991) 6 NWLR (Pt. 200) 683, this court held that the provisions of Section 148 (d) (now 149 (d) of the Evidence Act are concerned with the withholding of evidence and not with failure to call a particular witness. See also Asarinyu v. The State (1987) 4 NWLR (Pt. 67) 709 at 716.
The prosecution is not bound to call a particular witness to prove its case. The prosecution is not bound to call every witness to testify. All that it requires are the testimonies of witness as who are necessary to prove its case beyond reasonable doubt. The fact that the prosecution did not call the wife of PW1 did not leave any lacuna, vacuum or gap in the prosecution’s case. See Udo v. State (2006) 15 NWLR (Pt. 1001) 179 at 195; Oduneye v. State (2001) 2 NWLR (Pt. 697) 311. In Ogboru v. Ibori (2006) 17 NWLR (Pt. 1009) 542 at 606, this court held that:-
“A single witness whose evidence is credible and free from contradiction is sufficient to be relied upon to prove a case beyond reasonable doubt.
Truth is not decided by majority vote. One solitary credible witness can establish a case beyond reasonable doubt……
Credible evidence means evidence worthy of believe and credit. It must only proceed from a credible source, it must be credible itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance..”
It is therefore clear that prosecution is not required to call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. See Alonge v. Police (1959) SCNLR 203. Where the prosecution fails to call a particular witness, the defence is free to call such a witness. See Ekpenvong v. The State (supra) at page 700 and Ogbodu v. State (1987) 2 NWLR (Pt. 54) 20.
It was also contended for the appellant that PW2 visited the scene of the crime and saw the damaged door of PW1’s house and the damaged windows belonging to PW1’s neighbour, yet the prosecution neither tendered any part of the broken door or window nor a photograph of the scene in court to prove that the robbers made forceful entry into the apartments as claimed by the complainants.
To begin with, there is no laws which require the prosecution to tender the broken windows and doors in order to prove that the robbers made a forceful entry into the room, apartment or house of PWS 1, 3 and 4.
Moreover “forceful entry” is not an ingredient or element of the offence of armed robbery. A person can be robbed at any place, anywhere at anytime without breaking and entering or forceful entry. A person can be robbed on the street or highway or market or in any open place.
In Section 11 of the Robbery and Firearms (Special Provisions) Act,
“robbery” means:- stealing anything and, at or immediately before or after or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen or retained”.
It is therefore clear that the prosecution need not tender the broken doors or windows to prove the case of armed robbery. That notwithstanding, PW2 testified that he visited the scene of crime and he saw the damaged doors in PW1’s house and the damaged windows belonging to his neighbours, done by the robbers. See page 46 lines 26 and page 51 lines 21 – 23 of the record. The evidence of PW2 was not challenged or controverted or contradicted since he was not even cross-examined. The evidence of PW2 is not of poor quality rather it is credible and of probative value. Therefore the evidence of PW2 sufficiently and unequivocally proved that the appellant and the 2nd accused made a forceful entry into the rooms of PWS 1, 3 and 4.
Lastly, the failure of the prosecution to tender the guns used by the appellant and 2nd accused is not fatal to the case of the prosecution so long as there is cogent, reliable and authentic evidence which the court believes and admits. See Gbadamosi v. The State (1991) 6 NWLR (Pt.196) 182. I find that the prosecution proved its case against the appellant beyond reasonable doubt in accordance with Section 138 (1) of the Evidence Act. There is no merit in the two issues raised by the appellant, I therefore resolve them against him.
Accordingly, this appeal be and is hereby dismissed. The judgment of Eniefiok Udoh, J, delivered on 27/7/2000, wherein the appellant was found guilty, convicted and sentenced to death, is hereby affirmed.
Appeal dismissed.
Other Citations: (2009)LCN/3274(CA)
