Albert Ikem V. The State (1985)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

I have had a preview of the judgment of the Chief Justice of Nigeria in this appeal. I am in total agreement with the reasoning and conclusions that the appeal be allowed. I wish merely to add my own views in concurrence.

On the 19th May, 1983, Albert Ikem, hereinafter referred to as the appellant was convicted of the offences of conspiracy and Robbery with arms contrary to S.3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by S. 20 of the Robbery and Firearms (Special Provisions)(Amendment) Act No. 48 of 1971 and S.1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 and sentenced to death by the Bendel State High Court sitting at Asaba. His appeal to the Court of Appeal Division, Benin City was dismissed on the 19th day of March, 1984. This is an appeal from that judgment.

Appellant was charged in the first count with the offence of conspiracy to commit robbery with firearms, contrary to S.3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by section 2 of the Robbery and Firearms (Special Provisions) (Amendment) Act No. 48 of 1971: In the second count he was charged with Armed Robbery, punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1970.

The offence was alleged to have been committed on or about the 2nd April, 1981 at Asaba/Onitsha road near Bridge Head. The facts as can be gathered from the evidence of the first and 2nd prosecution witnesses, who were the complainants, and the appellant and his witness, was that the PW1 and PW2. were on their way back to Onitsha from Asaba at about 8 p.m. on the 2nd April, 1981. when they were flagged to stop by a torchlight waving person. According to PW1, two men in civilian clothes emerged, and ordered them to surrender all they had with them and in the vehicle. PW1 was sitting in the front seat with the PW2. the driver, who was so frightened, that he Jumped out of the vehicle and ran away.

PW1 was then searched by one of the robbers and his money from his pocket taken from him. The robbers then escaped into the bush nearby. PW2’s evidence was that he did not run away, it was when he attempted to do so that he was ordered to come out of the vehicle and to surrender all he had in his possession. He told one of the robbers that he had nothing. After searching his pockets and finding nothing, he was slapped, his shirt torn and the robbers ran into the bush. PW1, said that one of the robbers i.e. the accused, dipped his hand into PW1’s pocket and removed his money, and both robbers disappeared. Whilst the PW1 said that the accused, now appellant, held a dagger in his hand, and that was what frightened him, PW2 said both robbers were holding guns, and he was able to see this because he pointed the light of the vehicle at them and saw their faces. This is the account of the incident of the robbery by the two complainants actually affected.

The second part concerned the report to the Police by PW1 and PW2, and the actual apprehension of the appellant. From the accounts of the complainants, i.e. PW1 and PW2, the robbers ran away after robbing them.

After reporting the incident to the Police, complainants were given armed policemen to return to the scene of the incident in the vehicle in which the complainants were robbed. PW1’s evidence was that he came out on reaching the scene, and was walking along the road, when again he saw a torchlight flash. He continued walking towards the direction from which the light came and met the appellant. He enquired from appellant whether appellant could direct him to where he, PW1, could buy fuel for his vehicle. Appellant insisted on being given the registration number of PW1’s vehicle before he could be of assistance. PW1 said that this excited his suspicion and made him look at appellant closely and he thereupon recognised him as the man who had robbed him of his money. PW1 then invited the Police who were all the time waiting in the vehicle and showed appellant to them as one of the robbers who had robbed them that night. Appellant was then arrested and taken to the Police Station.

In his evidence, PW2, said that appellant was one of the robbers who robbed them with guns; although he admitted that the man who slapped him was not appellant but the man at large. The evidence in court of PW3 and PW4 who were the Police Officers to whom PW1 and PW2 complained after the incident, and who accompanied them to the alleged scene and subsequent apprehension of appellant is worth examining.

PW3 said in his evidence that PW1 showed him a torchlight which PW1 removed from one of the robbers, and appellant on being confronted admitted that the torchlight belonged to him, PW4 in his evidence said, he saw appellant with a torchlight at the time he was arrested. Both PW3 and PW4 said that on search after the arrest appellant had N20 in cash on him. PW3 and PW4 accompanied PW1 and PW2 to the alleged scene of the robbery. PW5 who investigated the offence stated in evidence that appellant was referred to him with a torch and N20. These were tendered and marked Exhibits “A” and “A1”, respectively.

In his evidence appellant denied the charge and stated that he lived at Bridge head Camp, Asaba, and that he was a trader in petrol, gas and motor oil. He was at home eating at about 9 p.m. when a car stopped on the opposite side of the road, and someone from the car carne out to his premises to enquire whether he had petrol to sell. He said he had, but since the vehicle of the enquirer, who was PW1, was on the opposite side of the road, PW1 required a container. Appellant was prepared to give PW1 a container if PW1 would pay for it. Appellant asked for the registration number of PW1’s vehicle, and when PW1 was unwilling to disclose, appellant’s left him in annoyance and advised PW1 to go to DW1, appellant’s neighbour, to buy the fuel. When DW1 came out, PW1, then told appellant and DW1, that he had been robbed along the road. As they were discussing the information PW3 and PW4 came out from the vehicle PW1 came with, and PW1 pointed to appellant as the man who had robbed him. Appellant was at this time holding a torchlight which he usually had at night and N20 in cash made up of 2 N5 and 10 N1 currency notes. Appellant’s evidence was corroborated entirely by the evidence of his only witness, DW1. The evidence of the defence was in sum that the first time he ever saw PW1 was at about 9 a.m. and he had with him a torchlight and N20 eash in money. That PW1 was asking to buy fuel.

Very summarily stated, evidence of the prosecution was that PW1 and PW2 were flagged down at about 8 p.m. by a torchlight flashing robber, and were robbed of PW1’s money by one of the two robbers who immediately after escaped into the bush. PW2 was slapped, his shirt torn, and both PW1 and PW2 went to the Police Station to report the incident. There PW1 handed over to the Policeman on duty a torchlight he recovered from one of the robbers. PW1 in his evidence stated that when confronted PW2 got out of the car and escaped. PW2 said he did not, and that he was present throughout the incident.

The learned trial Judge rejected the defence of the appellant having disbelieved the evidence of appellant and his witness. He believed and accepted the evidence of the prosecution and found that the prosecution has proved the case against appellant beyond reasonable doubt, convicted him and sentenced him to death.

Appellant appealed to the Court of Appeal, on four grounds, of error in law that the offence was proved, and misdirection’s in law and fact for regarding the failure to mention the amount of money lost as immaterial, and failure to consider contradictions in the evidence of PW2 and PW1. Ground 4 is the omnibus ground. The Court of Appeal dismissed the appeal and all the grounds of appeal filed. This appeal is against the judgment of the Court of Appeal. Originally two grounds of appeal were filed. With leave of this Court, H.A. Lardner, SAN., filed two additional grounds of appeal. The original grounds of appeal were withdrawn and were accordingly struck out. One the two additional grounds of appeal were argued before us. They are as follows –

SCHEDULE

“1. In affirming the findings of fact made by the learned trial Judge, the Court of Appeal misdirected itself in law and in fact by failing to observe that

(a) whereas PW1 testified on oath that the accused held a dagger in his hand, PW2 testified on oath that the accused and the person with him held guns;

(b) what the accused held (if anything at all) is material fact;

(c) PW1 and PW2 contradicted each other on a material point;

(d) no foundation whatsoever was laid by the prosecution why the evidence of one of these witnesses and which of them should be preferred to that of the other;

(e) the learned State Counsel in his final address, spoke of a dagger and gave no explanation why he urged the Court to resolve the inconsistency and contradiction that way;

(f) the learned trial Judge clearly misdirected himself on the evidence before him when he ascribed to PW2 evidence this witness had not given, to wit, that he had “seen a gun with them” i.e., the accused and his companion;

(g) that in the circumstances, the evidence as to what the appellant had with him, if anything at all, at the time of the alleged robbery was inconsistent, contradictory and unreliable and that the conviction of the accused ought to be quashed.

2. The Court of Appeal misdirected itself in law and in fact in affirming the facts as found by the learned trial Judge, particularly as to the accused being one of the persons who robbed the PW1 on the night of the 2nd April, 1981

PARTICULARS OF MISDIRECTION

(a) Nowhere in his judgment did the learned trial Judge express himself as basing his finding on the demeanour of the prosecution witnesses;

(b) Even if he had done so, the demean our of the prosecution witnesses must yield to the following hard facts which weakened the evidence of identification.

(i) the prosecution’s case rested on the identification by PW1 and PW2 of the accused as one of their attackers after their brief encounter with the attackers yet these two witnesses gave mutually exclusive accounts of what the attackers were armed with;

(ii) PW2 had the scantiest opportunity of observing the accused at all as PW2 tried to run away and his encounter was with the other assailant who pursued him;

(iii) the learned trial Judge misdirected himself on the evidence of PW2 who said the attackers had guns with them. NOT that he had seen a gun with them;

(iv) the lights described by PW1 and PW2 which were not amply adequate to distinguish a dagger from a gun could hardly be adequate, in a fleeting moment to show the face of two men with any lasting impression;

(v) the evidence of PW3 to the effect that when PW1 first reported the incident to him he produced a torch recovered from the accused is contrary to the evidence of PW1 which is to the effect that the torch was recovered when he and PW3 went to arrest the accused;

(vi) before finding as a fact that the accused was one of the assailants, the learned trial Judge had found that “the torch found with the accused is the torch that was used to flash the vehicle of the complainant to a stop as if they were Policemen”;

(vii) the speculation that the N20.00 found with the accused by the Police could be part of the money taken from the complainant has no basis in fact as it is not part of the prosecution’s case on the evidence that the amount stolen from PW1 exceeded N20.00″

These grounds of appeal challenge and attack the findings of fact by the learned trial Judge, and the misdirection in law of the Court of Appeal, affirming such findings of fact.

It is a well settled principle of the administration of justice that questions relating to primary findings of fact are ordinarily exclusively within the domain of the Court of trial. This is because it is the Court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanour and behaviour before the Court of trial. – See State v. Nafiu Rabiu (1980) 8-11 Sc. 130; Nasamu v. The State (1979) 6-9 Sc. 153, 161; The Court of Appeal which is not in the same advantageous position as the Court of trial cannot set aside the judgment of the Court of trial merely on the grounds that, it would have, if it were considering the matter, come to a different conclusion. Hence, so long as there was evidence from which the learned Judge could have come to the conclusion to which he did, the verdict cannot be disturbed. – See R. v. Omisade & Ors. (1964) N.M.L.R. 67; Efe v. The State (1976) 11 S.C. 81.

However, it is well settled that where the record discloses that the finding of the trial Court cannot be supported on the evidence, such a finding will be disregarded and the Court of Appeal can interfere by setting aside the finding. – See Nafiu Rabiu v. The State (1980) 8 -11 S.C. 130 at p. 172, R. v. Ogodo (1961) All N.L.R. 700, Agbeyegbe v. I.-G. of Police (1955)15 W.A.C.A. 37, Edet v. Board of Customs & Excise (1965) N.M.L.R. 188.

The first ground of appeal has attacked the judgment of the Court of trial and of the Court of Appeal for affirming same in spite of several material contradictions in the evidence in Court of PW1 and PW2 relating to the weapon held by the robbers, and the second ground of appeal related to the identity of the appellant as one of the robbers. Counsel for the respondent, Mr. Hayble, relying on Akpan & Anor v. Queen (1960) 5 F.S.C. has submitted that the contradictions in the evidence of PW1 and PW2 are not material to warrant the trial Judge rejecting them. He also cited Enahoro v. Queen (1965) NMLR 265, 267. It is pertinent to refer to the summing up of the evidence of the PW1 and PW2-in the judgment of the learned Judge, where he stated as follows – (See page 18 lines 15 – 20, 2 – 29).

“The complainant and his driver had come from Enugu to Asaba to do some work and were returning in their Pick-Up Van Peugeot 404, and when they got to the Asaba Bridge Head at about 8 p.m. They saw torchlight flashing them to stop. They obeyed and stopped before them, when two men in civilian dress confronted them.

Then he proceeded to make the crucial summing up challenged, which is that “The accused was holding a dagger. They demanded from them to surrender all they had in their possession. The driver frightened, jumped down from the vehicle and escaped. The accused ransacked the pockets of the complainant Augustine Ajufoh and removed all the money he had. When they became satisfied that there was nothing more to take, they disappeared. The driver later showed up and both of them drove off to report to the Police Post that was quite close by.”

This was the summing up of the evidence of the robbery by the trial Judge. There is much force and justification in the criticisms of this summing up by Mr. Lardner, SAN, for the appellants. It is obvious on the evidence of PW1 and PW2 before the learned Judge, that the accounts of the incident of the robbery are not identical and clearly not reconcilable. Whereas PW1 spoke of the appellant holding a dagger in his hand, PW2 spoke of both robbers having guns. Besides whereas PW1 testified that PW2 jumped out of the car and ran away and returned after the robbers had left, and this account was accepted by the learned Judge, PW2 testified on oath that he was present throughout the robbery incident, he was searched and nothing was found on him and he was slapped by the robber, now at large. It is not difficult to see how clearly contradictory and conflicting the two accounts of the same incident is. These facts relate to the robbery incident, the fact that appellant was one of the robbers and that he was carrying an offensive weapon, namely a gun or a dagger. These are undoubtedly the material facts relating to the offence for which appellant was being tried. It is well settled that where prosecution witnesses have given conflicting versions of material facts in issue, the trial Judge before who such evidence was led must make specific findings on the point, and in doing so must give reasons for rejecting one version and accepting the other. See anubogu & Anor. v. The State (1974) 9 S.C. 1, at p.20. Hence, unless this is done it will be unsafe for the Court to rely on any of the evidence before it. The proper course in the circumstance is to reject both versions of the evidence as unreliable and unsafe for the purpose of determining the material issue before the Court. In the appeal before us, the trial Judge has without showing that PW2 is a hostile witness thereby discrediting him, rejected his evidence and preferred that of PW1. This in my opinion, he cannot do. See Onubogu v. The State (Supra).

The Judgment of the learned trial Judge becomes more difficult to understand where he made his finding on the identification of the appellant as follows – (see p. 20 lines 22 – 31)

“What is crucial in the case for the prosecution is the identification of the accused. The attackers were two. According to the driver (PW 2) he saw a torch flash and taking it to be that of the Police for him to stop on the road he came to a stop. His headlights were on the faces of the two persons and he observed them, before one of them ordered him to switch off his lights. He had seen a gun with them. One of them searched his pockets, found nothing, and gave him a slap and tore up his shirt.”

The sentences in italics are crucial and represent material contradictions of the testimony of PW1, and indeed part of the evidence of PW2 in Court. In his evidence in chief PW2 had stated that the robbers had guns; not a gun. It seems clear from the passage of the judgment reproduced that the learned Judge based his identification of appellant entirely on the evidence of PW2. When subjected to critical analysis as was done by Mr. Lardner, SAN, in his brief for the appellant, the identification of the appellant as one of the robbers seems to crumble in the face of the glaring discrepancies in their evidence. There seems to be two different encounters with appellant. First, there was the encounter with the armed robbers at the Bridge Head, at about 8 p.m. where the armed robbery took place. The second occasion was at about 9 p.m. when PW1 ‘pretended’ to be looking for petrol to buy, and when appellant was alleged to have been recognised by PW1 leading to his arrest by PW3 and PW4.

It is interesting to note that the learned Judge said that he accepted and believed the story of the prosecution, and disbelieved the accused and his witness in so far as their evidence is incompatible with the version of the prosecution. One may ask which version of the prosecution evidence It is pertinent to observe that the evidence of the defence is only related to the second encounter at 9 p.m. This encounter was only with PW1 and appellant alone. Again appellant was carrying a torchlight when he was accosted by PW1. There was no dispute as to whether PW1 enquired about fuel, appellant’s insistence on knowing the registration number of PW1’s vehicle and appellant’s ultimate refusal to sell petrol to PW1 without knowing the registration number of his vehicle. The only issue was whether PW1’s suspicion that appellant was one of the robbers who robbed him at the Bridge Head at about 8 p.m. was on the facts justified

In his own words under cross-examination – PW1 said,

“I recognised the accused when he asked for the number of my vehicle, his request raised a suspicion.” (see p. 6, lines 16-18).

It seems that what led to the P.W.1 suspecting appellant was not anything related to appellant’s features, dress or any behaviour connecting appellant with the robbery incident, but because appellant wanted to know the registration number of the vehicle of P.W. 1, in respect of which the jerry can for fuel would be given to P.W.1. It is this that led to the identification of appellant as one of the robbers. It is clear from the judgment of the learned Judge that he regarded the identification of appellant as crucial to the case of the prosecution. – (See p. 20, lines 22 – 23). In his criticism of this finding Mr. Lardner has submitted that the learned Judge did not take advantage of his having seen and heard the prosecution witnesses, Counsel referred to the contradictions in the evidence of P.W. 1 and P.W. 2, and the opportunities they had for observing the robbers in total darkness, and the fact that appellant was not picked out at an identification parade, but was the person who flashed a torch light again to stop P.W.1 soon after a robbery which followed the same pattern. Counsel pointed out the improbability of appellant being the robber from the accounts of the two incidents. These criticisms are valid and perfectly justified.

The evidence of P.W. 3 relating to the torchlight subsequently claimed by appellant raises doubts whether the torchlight claimed by P. W.1 a have been recovered from one of the robbers at about 3 p.m. and handed to P.W. 3 at the time of the report of the robbery incident, is the same torchlight with which appellant flashed P.W.1 to stop at about 9 p.m. and which appellant was holding at the time of his arrest. It is highly improbable that it can be. In my opinion it is not. The trial judge did not examine the defence of the appellant, but stated that he disbelieved it where it is incompatible with the version of the prosecution. The evidence of the appellant and his witness is clearly incompatible with the evidence of the prosecution in respect of the first encounter. But since the evidence of the prosecution witnesses in respect of this account is conflicting, there was nothing for the learned Judge to believe, and was, in my respectful view, wrong to have accepted and believed the evidence of the prosecution on the incident of the robbery and that appellant was one of the robbers. – See Onubogu v. The State. In respect of the second encounter, the evidence of the prosecution witnesses is clearly not incompatible with that of the appellant and his witness. There was no evidence that appellant did not reside at the place he claimed, or that he was not a dealer in petroleum products, who at about 9 p.m. on that night had petroleum to sell to P.W. 1. The robbery incident took place at 8 p.m. In the absence of any contrary evidence,there was no basis for the learned trial Judge disbelieving the defence of the appellant. There is therefore in my opinion no evidence in support of the finding that appellant was one of the robbers who robbed P.W. 1 and P.W. 2 with arms. See Nafiu Rabiu v. The Stare (supra). The trial judge did not advert his mind to the evidence on the record in favour of the appellant. The Court of Appeal which was in a position to correct the error has also failed to do so. It is the duty of this Court to correct such patent error on the record and make the finding which the Court below should make. – See Okonofua & Anor. v. The State (1981) 617 S.C.1; Aruama v. C.O.P. (1980)(1) N.C.R. 77. I am of the firm opinion, that the learned trial Judge was wrong in law to have convicted appellant on the evidence before him, and the Court of Appeal was similarly wrong to affirm the conviction. Having found appellant not guilty of the substantive offence, he cannot be guilty of conspiracy to commit the offence with which he has been acquitted. – See Nnaji v. Police (1957) FSC. 18. Accordingly, the judgment of the Court of Appeal, affirming the conviction of the appellant by the learned Judge of the offence of conspiracy and armed robbery in accordance with S. 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, S. 3A(b) of the Robbery and Firearms (Special Provisions) (Amendment) Act No. 48 of 1971 are hereby set aside. The conviction of the appellant by the High Court is quashed and the judgment set aside. A finding of acquittal and discharge is hereby entered.

G. S. SOWEMIMO, C.J.N.(Presiding): When this appeal was heard in the Court of Appeal on 19th December, 1983, the panel comprised three Justices of the Court of Appeal, viz: Omo-Eboh, Okagbue and Ikwechegh, JJ.C.A.

On the 19th of March, 1984, judgments of the three Justices of the Court of Appeal, Benin City, were read. The three Justices, who agreed to the lead judgment prepared by Okagbue, J.C.A., did not, however, sit. Ete and Pepple, JJ.C.A. sat instead. The grounds of appeal and arguments addressed to this Court did not turn on this, however.

The appellant was convicted of charges of:-

(1) conspiracy to commit felony, to wit, armed robbery;

(2) armed robbery.

He was, however, only sentenced to death on the 2nd count. He appealed to the Court of Appeal, where his conviction and sentence of death were affirmed.

Mr. H.A. Lardner, S.A.N., who argued the appeal, took the point, that when an accused person, as the appellant was at the Asaba High Court of Bendel State, stood charged with an offence which carried a death penalty, not only must any contradiction or contradictions of a material particular be carefully examined and resolved, but the prosecution must also prove its case beyond all reasonable doubts.

It may be mentioned, as a matter of details, that the hearing of this case commenced at the Asaba High Court on 23rd November, 1982, judgment was not given until 19th May, 1983. Hearing of the appeal in the lower court commenced and ended on 19th December, 1983, and judgments were read on 19th March, 1984.

At the hearing of the appeal before us, counsel said that the first prosecution witness (P.W. 1) and the second prosecution witness (P.W.2) contradicted each other in material particulars, and submitted that, if the learned trial Judge had considered these contradictions, especially in an offence as armed robbery, which carried with it a death penalty, he would have resolved the contradictions in favour of the appellant. There is no doubt that P.W.1 contradicted P.W. 2, in regard to what they carried i.e. the appellant and his companion. It was alleged that the appellant carried a dagger. On the other hand, P.W. 2 alleged that the appellant and one other carried guns. It does appear also that P.W.1 gave evidence that P.W. 2 ran into the bush. P.W. 2, on the other hand, gave the impression that he was at the scene throughout the incident. It does appear that either P.W.1 or P.W.2 could not be speaking the truth. The learned trial judge, who saw the witnesses and heard them give evidence, especially under cross-examination, did not resolve the contradictions one way or the other, with reasons. The Court of Appeal did not resolve the issue either. In our opinion, it is absolutely necessary that if the conviction and sentence of death have to be based on anything, it must be on the basis that prosecution has proved its case beyond all reasonable doubts.

I have drawn attention to the material particulars where P.W. 1 and P.W. 2 contradicted each other. These contradictions must be resolved in favour of the appellant. I do not see how the charge of conspiracy was made against the accused. The learned trial Judge, although he convicted the appellant, did not pass any sentence on him. The sentence of death was for the alleged armed robbery.

The appeal will, therefore, be allowed. The judgment of the Asaba High Court, which was affirmed by the Court of Appeal, Benin-City, will be set aside. A finding of not guilty and an acquittal and discharge will be entered instead.

M. BELLO, J.S.C.: I have had the advantage of reading the judgment delivered by my learned brother, Karibi-Whyte, J.S.C. For the reasons stated therein, the appeal is allowed. The conviction and sentence are set aside and a judgment of acquittal and discharge be entered.

D. O. COKER, J.S.C.: The appellant was charged before the High Court of Midwest State on a two count information of conspiring to rob, contrary to section 3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1971, and of Armed Robbery, punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. Of the five prosecution witnesses, two of them were supposed eye witnesses who were the victims of the alleged robbery, three were policemen, two arrested the accused person and the third investigated the case. The appellant gave evidence and called one witness. The appellant denied the evidence of the prosecution witnesses connecting him with the robbery and his witness substantially supported his defence. The trial judge, without critically examining the evidence of the prosecution witnesses and that of the defence, said he believed that the appellant was guilty of both counts and sentenced him to death, “pursuant to section 367(2) of the Criminal Procedure Law, Cap 49.”

The appellant appealed to the Court of Appeal and on the 19th March, 1984, his appeal was dismissed and his conviction and sentence were affirmed. He has further appealed to this Court on two original grounds.

Mr. Lardner, S.A.N., for the appellant, sought and obtained leave to argue two additional grounds. All the four grounds were argued together. His argument was that the conviction of the appellant was not safe in that the evidence of the prosecution witnesses was inconsistent and conflicting and the identification of the appellant by the two alleged eye witnesses, who were the alleged victims of the robbery, was not critically examined by the trial judge, and that he failed to exercise any or sufficient caution in accepting the conflicting versions of their account of the robbery. He argued that the contradictions were on material facts and that the trial judge failed to resolve the conflicts and in addition, he made no attempt to give any reason why he rejected the version of the appellant in preference to that of the prosecution.

On the whole, learned counsel submitted, the case against the appellant was weak and not proved and his conviction therefore was unsafe. He pointed out some of these contradictions and conflicts inter se between the evidence of the 1st P.W. and 2nd P.W., and on the other hand, that of the two policemen who afterwards accompanied them to the alleged scene of robbery. He argued that the Court of Appeal fell into the same error as the trial court did, in that it failed to direct itself of the significance or bearing of those conflicts on the proof of guilt of the appellant. As a result of all these, he submitted, the appeal should have been allowed and the conviction and sentence quashed.

Mr. Hayble, the Deputy Solicitor-General of Bendel State in answer argued that the conviction of the appellant was amply justified by the evidence and that the contradictions were on immaterial matters.

After very carefully considering the argument and the evidence on record, I have no doubt whatsoever that the criticisms of learned Counsel for the appellant were justified. I find that the evidence of the robbery conflicting and the identification of the appellant was not only weak but unsatisfactory. See Idahosa v. R. (1965) N.M.L.R. 85 and Sc. 35/1984; Zekari Abudu v. The State unreported, delivered on the 18th day January, 1985.The evidence of P.W.1 conflicted with that of P.W. 2. The evidence of P.W. 3 and P.W. 4 equally conflicted with those of P.W. 1 and P.W. 2 and between themselves. See Onubagu & Anor. v. The State (1974) 1 All N.L.R. 5 (Part. 2). I shall now proceed to examine in detail the evidence of these witnesses with a view to spotlighting those conflicts and to show the weakness of the case for the Prosecution.

The 1st P.W. witness testified that the 2nd P.W. was so frightened, when the appellant and his confederate stopped them, that he (P. W. 2) jumped out of the vehicle and ran away. The 2nd P.W. positively said he never ran away and that implies that he was present throughout the incident and saw how the 1st P.W. was allegedly robbed. P.W.2 said it was P.W.1 who told him he was robbed of his money. P.W.1 said that the appellant had a dagger which frightened him, not a gun. While the 2nd P. W. said the appellant and the other robber each had a gun. The 1st P.W. did not say that any of the two robbers had any gun. The 2nd P.W. said the two robbers ran into the bush after they were attacked. P.W.1 said, after the robbery “They left us and disappeared’” 1st P.W. said that it was after the money had been taken out of his pocket that he (witness) jumped out of the vehicle, yet P.W. 2 said, “During the confrontation, P.W.1 came out of the vehicle and was standing by the vehicle,” but later said “it was the robbers who opened the door of P. W. 1 and dragged (P. W. 1) out asking for all he had. I now say it was one of them who dragged him (i.e. P.W.1) out.”

The impression given by the P.W. 2, was that P.W. 1 came out of the vehicle and waited as he (P.W. 2) was confronted by the robbers; and not that it was after he “was pulled” out of the vehicle.

There is yet another important point. The P. W.1 did not say he took any torch to the Police Station. P.W. 3, said it was he (P.W.1) who brought the torch to the Police. It is difficult to imagine how and at what stage P.W.1 retrieved it. The impression given by P.W. 3 was that there were two torches, one brought to the Police Station by P.W.1, while the other was recovered from the appellant after they (P.Ws. 3 and 4) had arrested him.

Then the question of identification of the appellant, P. W.1 said on their return to the scene with the Police,

“I came out and was walking along the side of the road when I again saw a torch flash. I proceeded towards it and met the accused and I enquired from him if he could direct me to where I can buy fuel….. He asked me to tell him the number of my vehicle. I refused. He insisted. I started to watch him closely. I then observed that he was the man who had taken my money. I then invited the Policemen in the vehicle and showed him to them. He was arrested.”

But the 4th P.W. said of the appellant: “I did not see him use his torch as it was a bit dark.” The other Policeman, P.W. 3 said,

“He (P. W. 1) showed me torch which he said he removed from one of the robbers.”

That was at the police station before they proceeded in company of P.W.1 and P.W. 2 to the scene. On arrival at the scene, P.W. 3 said:

“I later saw accused walking along the road, P.W.1 identified him as one of the two robbers who robbed him. I came out, saw the accused who was about run away, he was identified and we arrested him. I asked the accused if he knew the P.W.1 and he said yes. I showed him the torch P.W. I recovered and he said it belonged to him.”

The implication of the evidence of this witness was that P.W.1 had no difficulty in identifying the appellant as soon as he saw him as one of the two robbers. The witness did not mention that the appellant had a torch or flashed any torch. Surely, this is a very different account of how the accused was identified by P.W.1. Bearing in mind the very brief interval between the time of robbery and the time the appellant was arrested, one would have expected that P.W.1 would have had no difficulty in identifying the appellant immediately he saw him. His suspicion was aroused during the conversation only after the appellant asked for particulars of his vehicle. The appellant gave the reason why he made inquiry, and his witness corroborated his evidence as to the circumstance which led to the enquiry. His reason for demanding the particulars was reasonable. The whole case leaves very many questions unanswered. Why should P.W.1 say the accused flashed his torch when he and the other prosecution witnesses returned to the scene when in fact he did not Whether it was true that P.W. 1 took a torch to the Police or where did the P.W. 1 obtain the torch which he took to the Police Station And why did P.W. 1 not testify at the hearing the amount which the appellant removed from his pocket Why did he not tell the P.W. 2 or the court the amount The riddle of the two torches remain unresolved. So also was the weapon alleged the appellant and the other robber had at the time of the robbery.

All these, to my mind, leave very serious doubt as to the prosecution’s case. The inconsistency of the evidence of 1st P.W. and P.W. 2 cast grave doubt about the alleged robbery or of appellant’s complicity in the robbery. The impression created in any reasonable mind is that the appellant soon after robbing P.W.1 escaped into the bush, appellant returned to the road with a torch waiting to catch another victim before he was arrested. Yet no weapon of any kind was found on him at the time of his arrest; nothing of that kind was found in his house during the search. His evidence in Court as to his business that night was not dented during the investigation or under cross examination nor was that of his witness. His witness went to the police station soon after his arrest and made a statement while appellant was still in custody. The trial judge said:-

“It may well be that the accused and his witness sold some petroleum products on the road. It may well be also that the torch was used obstensibly for selling fuel at night. It is however the torch that was used to flash the vehicle of the complainant to a stop as if they were Policemen. The N20.00 found with the accused by the Police could be part of the money taken from the complainant.

On the whole, I disbelieve the accused and P.W.1 in so far as their evidence is incompatible with the version of the prosecution. I believe and accept the story Put forward by the prosecution.” The trial judge failed to resolve the inconsistent account of the two torches and how the P.W.1 obtained the torch which he took to the Police Station, or whether it was P.W. 2 who recovered the torch and from whom he recovered it. P.W. 3 and P.W. 4 did not say appellant had a torch at the time of his arrest. The above quoted statement showed the Judge himself did not disbelieve the appellant and his witness. He did not advert his mind to the conflicting evidence of the weapon the appellant or his confederate had, if any. Was it a gun or a dagger or both

I am of the view that if the learned trial judge had given due and sufficient consideration to these pieces of contradictory evidence of the prosecution witnesses, and the inconsistency of the story, it is doubtful if he would have come to the same decision. The evidence adduced by the prosecution witnesses more particularly the manner of identification of the appellant by P.W.1 was manifestly unreliable and the evidence against the appellant grossly conflicting in material details. In the circumstance, I find that the conviction of the appellant unsafe and his conviction cannot stand. His appeal must be allowed and his conviction quashed. Bearing in mind the serious nature of the charges and the death penalty they incur, a high degree of proof was necessary to secure a conviction. See Egbe v. The King 13 W.A.C.A. 105. I have no difficulty in reaching the decision that the case of the prosecution failed to attain the standard of proof required. I will allow the appeal, quash the conviction and sentence. The judgments of the trial court and that of the Court of Appeal are therefore set aside. I will substitute a verdict of not guilty on each of the two counts, and make an order of discharge and acquittal.

In passing, it is to be observed that the sentence passed on the appellant was by hanging as provided in section 367(2) of the Criminal Procedure Law, Cap. 49 Law of Bendel State. It is my view that the duty of directing the mode of execution does not lie with the trial judge but with the Governor of Bendel State under Section 1(2)(3) of the Robbery and Firearms Decree No. 47 of 1970. In Anthony Okobi v. The State (1984) 7 S.C. 62 p. 63 this Court said that where a person is charged or prosecuted under the Robbery or Firearms Decree the court cannot convict and punish him under the Criminal Code. Similarly, as the Decree specifically provided that the execution of the death sentence shall be as may be directed by the Military Governor of the State, the trial judge has no power to make an order as to the mode in which the death sentence should be carried out. It was for the Governor to decide or order that the offender be executed by hanging by the neck till he be dead or that he may suffer death by firing squad under Section 1(2)(3) of the Robbery and Firearms Decree No. 47 of 1970.

S. KAWU, J.S.C.: I have had the advantage of reading in draft the judgment of my learned brother, Karibi-Whyte, J.S.C. which has just been delivered. I am in entire agreement with the reasoning and conclusion that the appeal be allowed.

In my view, the contradictions in the evidence of the 1st and 2nd prosecution witnesses which have been highlighted in the judgment are of vital importance, and if the contradictions had received such consideration as they deserved in the hands of the learned trial judge, he would not have arrived at the conclusion he did. On the whole the totality of the evidence in this case does not measure up to that degree of certainty which should be the criterion in a criminal trial. Rather, there is room for doubt about the guilt of the appellant, and that doubt should be resolved in his favour. Accordingly, the appeal is allowed. The verdict and sentence imposed are hereby set aside. The appellant is acquitted and discharged.

Appeal Allowed

Judgment of Court of Appeal affirming

Decision of High Court of Asaba set Aside

Verdict of Not Guilty entered

Appellant acquitted and discharged

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SC.96/1984