Olugbenga Amodu V. The State (2009)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
The Appellant was arraigned before High Court Idah, Kogi State on 3rd July, 2003 on a two count charge of criminal conspiracy and armed robbery contrary to Sections 97(1) and 298 of the Penal Code. The Appellant was on the 21st December, 2006 convicted and sentenced to five years imprisonment each on both the first and second count charges without the option of fine and the sentences to run concurrently.
The facts as adduced by the prosecution was that on or about the 2nd November, 2002, the Appellant in company of others at large, armed with guns and other dangerous objects robbed the occupants of Lana Estate, Idah, stealing their money, materials and injuring the complainant one Inspector Ogbaka Ochigbo when he was allegedly fired at by one “Omo boy” on the instruction of the Appellant. The said Inspector Ogbaka Ochigbo was alleged to have been dispossessed of the sum of N11,800,00, a video machine valued at N9,500,00 and other house hold items. The prosecution called two witnesses while the appellant testified for himself and called no witness.
Being dissatisfied with his conviction and sentence, the Appellant has appealed to this court upon four Grounds of Appeal vide a Notice of Appeal dated 16th February, 2007. The grounds of appeal without their particulars are hereby reproduced:
GROUNDS OF APPEAL
GROUND 1
The decision/judgment is unreasonable and cannot be supported having regard to the evidence GROUND 2
The trial court erred in law when it convicted the Appellant who had set up a plea of Alibi that was never investigated by the prosecution nor disproved by evidence given at the trial thus occasioning a miscarriage of justice.
GROUND 3
The trial lower court exhibited undue bias in failing to avoid (sic) itself of every opportunity available to discontinue with the trial when there was application to strike out the case and discharge the appellant.
GROUND 4
The trial lower court erred in law when it convicted the Appellant in a case where the proof did not meet the requirement of proof beyond reasonable doubt.
In compliance with the rules and practice of the court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Akin Adewale, Esq., the following three issues were formulated for determination, to wit:-
1) Whether from the evidence before the lower court, the prosecution has proved its case beyond reasonable doubt to warrant the conviction of the Appellant.
2) Whether the lower court was right to have convicted the Appellant on the offences charged based on the evidence of the sole witness which was inconsistent, prejudicial and highly improbable without corroboration whatsoever.
3) Whether failure to investigate the defence of alibi in this case was not fatal to the prosecution’s case.
In the Respondent’s brief settled by Joe Abrahams, Esq., the Han. Attorney General, Kogi State, the following two issues were respectively formulated for determination of the appeal namely:-
I) Whether the prosecution proved the offences of Criminal Conspiracy and Armed Robbery contrary to Sections 97(1) and 298(c) against the Appellant beyond reasonable doubt.
II) Whether in view of the eye witness evidence of PW1 identifying the Appellant as one of the people who robbed him on the day in question, Appellant’s defence of alibi could still avail him.
At the hearing of the appeal on the 19th March, 2009, learned counsel for the Appellant, adopted and relied on the Appellant’s brief of argument dated 20th July, 2007 and filed on the 27th July, 2007 and urged the court to allow the appeal and to discharge and acquit the Appellant. The learned counsel for the Respondent, the Hon. Attorney General, Kogi State, adopted and relied on the Respondent’s brief of argument filed on the 3rd March, 2008 but deemed properly filed on the 15th October, 2008 and urged the court to resolve all issues in favour of the Respondent and to dismiss the appeal.
I have considered the issues for determination as formulated by the respective counsel and it appears to me that the issues formulated by the learned counsel for the Appellant encapsulates all the issues raised in the appeal and same will therefore be adopted in the determination of the appeal.
Learned counsel for the Appellant argued issues 1 and 2 together and same will be considered as such.
Arguing the two issues together, Adewale, Esq., for the Appellant submitted that the standard of proof required of the prosecution is to prove its case beyond reasonable doubt which means that the prosecution’s case must be so watertight that it would leave no room for doubt as to the guilt of the accused person. He posed the question whether from the evidence, the prosecution can be said to have proved its case beyond reasonable doubt?
Learned counsel referred to the evidence of the only eye witness who was the complainant, Inspector Ogbaka Ochigbo, who also testified as PW1 and his statement to the police and submitted that the statement of PW1 to the police conflicts with his evidence in court and that both are inconsistent. Learned counsel submitted that PW1 in his statement to the police stated that the robbers made up their mind to kill him after taking his money because he is a policeman while in his evidence before the court; he stated that the robbers said he should be killed because the Appellant stated he looked directly to his face and could then identify him. Learned counsel also submitted that PW1 told the police that one of the robbers then wanted to shoot him but was stopped that he would be shot after his room has been searched and it was after this his bedroom light was switched on, while he told the court that the robbers wanted him dead after his room light was switched on as Appellant realized that he might recognized him ordered “Omo boy” to shoot him while on the bed in Yoruba Language. Learned counsel also submitted that PW1 told the police that the robbers fired at him four times, one when he was on top of one of the robbers, while he told the court that the robbers fired at him two times one at close range. Learned counsel therefore submitted that from the foregoing, doubt has been created in the mind of the court as to whether; the Appellant was indeed among the robbers that allegedly robbed PW1 on the day in question. It is submitted that the evidence of the said PW1 has been rendered so improbable that no reasonable tribunal could have convicted anyone based on such uncorroborated evidence. Learned counsel submitted further that the evidence of PW1 that he knows the Appellant very well being members of the same church, the Appellant could not have suggested to “Omo boy” that if PW1 looked directly to his face and could identify him later. That if it is true that PW1 knows the Appellant very well, they would have eliminated him and that it is unbelievable that the Appellant having been so positively identified by PW1 would be allowed to escape and for the Appellant only to be arrested in his house for such a heinous crime of armed robbery. Learned counsel urged the court to hold that the evidence of PW1 is highly improbable and therefore should not be believed in the absence of any corroboration.
Learned counsel referred to the definition of the word ‘probable’ in Blacks’ Law Dictionary as ”unlikely to be true, or to occur, not to be readily believed. Learned counsel submitted that the evidence of PW1 that the robbers shot him at a close range and yet had not died but continued fighting with him till he escaped is improbable and urged the court not to believe such evidence. It is also submitted that the evidence of PW2 which was to the effect that he went with PW1 to arrest the Appellant in his house, does not corroborate that of the PW1.
Learned counsel further submitted that no gun or any incriminating evidence was recovered when Appellant’s house was searched and that the Kaftan the Appellant allegedly worn on the day of the robbery was not recovered from the Appellant. It is also further submitted that PW1 testified” that he sustained gun short wounds in the course of the robbery and was treated in hospital yet, there was no medical report to back up this claim and that no medical doctor testified that the treated PW1 of any gunshot wounds and that there was no corroboration whatsoever of PW1’s evidence that he was shot in the course of the robbery operation.
It is also the view of learned counsel that PW1 having testified that there were other victims of the robbery operation at Lana Estate Idah on the day he was robbed, the prosecution having failed to call any other victim of the robbery thereby creating doubt as to whether any robbery did in fact take place at the said estate. He relied on the authority of BAHOR BAKO VS YAURI N. A. POLICE (1970) ALL NLR 558.
It is submitted that even though the prosecution was not bound to witnesses if one or two would be enough to prove its case, but in the instant case, where evidence of PW1 was so poor and improbable therefore, the only way to prove its case was to call other witnesses that would have corroborated the evidence of the said PW1 especially when no incriminating object was recovered from the Appellant. Learned counsel urged the court to give the Appellant the benefit of doubt in the face of such material inconsistencies in the evidence of PW1. He relied on the following cases- ONUCHUKWU VS THE STATE (199B) 4 SCNJ 36; DAPERE GIRA VS THE STATE (1996) 4 SCNJ 94; and ABOGEDE VS THE STATE (1996) 4 SCNJ 221.
It is also the view of learned counsel for the Appellant that the case of the prosecution has suffered a fatal blow in view of the highly prejudicial evidence given about the Appellant at the beginning of PW1’s evidence, when he testified that he prosecuted the appellant between 2001 and 2002 for criminal conspiracy, house breaking and theft in the house of Jonathan Jimo at Lona Housing Estate. That he also prosecuted the Appellant when he attempted to commit suicide. It is the view of learned counsel that the Appellant did not at any point in time put his character in issue to warrant such evidence from PW1 and that the evidence of previous conviction of the Appellant was wrongly admitted by the lower court contrary to Section 69(4) of the Evidence Act, when the certificates of judgment of the previous conviction were not tendered before the court. He urged the court to expunge the said evidence from the record, citing in support the case of NICHOLAS WANKEY VS THE STATE (1993) 6 SCNJ 152.
Learned counsel further argued that the failure of the prosecution to call the police officers that investigated the case to testify as to their investigation and findings is because the prosecution knows that the evidence if produced would have been unfavourable to the prosecution. Learned counsel urged the court to hold that the prosecution has failed to discharge the burden of proof beyond reasonable doubt in view of the inconsistencies in the statement of the only prosecution witness whose evidence was highly improbable.
In his response, learned counsel for the Respondent, J. Abraham, Esq., A.G. Kogi State, submitted that it is trite that the onus of proof has always been on the prosecution to prove the guilt of the accused person beyond reasonable doubt citing in support the cases of ONUBOGU VS THE STATE (1974) 9 SC1; MORKA & ORS VS THE STATE (1998) NWLR (PT 537) 294; and NWANKWO VS THE STATE (1990) 2 NWLR (PT.134) 627 at 639. Learned counsel referred to the ingredients of the offences of conspiracy and robbery under the Penal Code Law and submitted that the trial court after evaluating the evidence adduced by the prosecution satisfied itself that the Appellant was positively identified by PW1 and that the Appellant committed the offences for which he was charged. He submitted that PW1 having been previously familiar with the Appellant, his evidence in the case is much stronger than mere identification and the lower court was right to have believed him. Learned counsel referred to the inconsistencies in the evidence of PW1 and his statement to the police as outlined by the Appellant’s counsel and submitted that the procedure in establishing contradictions between previous statement of witness and his evidence in court provided under Sections 199 and 209 of the Evidence Act has not been followed. He cited in support the case of SAMUEL THEOPHILUS VS THE STATE (1996) 1 SCNJ 79. It is also submitted that there was no reference to the previous statement in the cross examination of PW1 by the defence and no contradictions were pointed out therefore denying the PW1 the opportunity of explaining the said contradictions if any. It is his view that the Appellant had the opportunity to confront PW1 with his statement to the police while in the witness box and that the failure of the defence to confront the said PW1 is fatal to his submission and urged the court to disregard same.
It is also submitted by the learned counsel that a sole witness can sustain a prosecution’s case provided his evidence is credible and that in the instant case the credibility of PW1 has not been impugned in any way and the learned trial judge rightly accepted his evidence. The court was urged to confirm the finding of the learned trial judge. It is also further submitted that the reference by PW1 to the previous criminal activities of the Appellant was not prejudicial to the Appellant in that there was no objection taken by the Appellant by the time evidence was being given at the trial and that the evidence was only to show that PW1and the Appellant have known each other before the incident. It is his view that the lower court did not based its decision on any evidence that is highly prejudicial to the Appellant and he urged the court to answer this issue in the affirmative and to dismiss the appeal on this issue.
It is trite that, in criminal proceedings, the burden of proof is always on the prosecution and the burden never shifts to prove the guilt of the accused person beyond reasonable doubt. The prosecution has the duty to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. That is, the standard of proof is such that if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See OMOGODO VS STATE (1981) 5 SC 5; HASSAN VS STATE (2001) 6 NWLR (PT.709) 286 and NWEKE VS STATE (2001) 4 NWLR (pt. 704) 588. This statement of the law has found support in section 138 (1) of the Evidence Act, cap 112 Laws of the Federation of Nigeria 1990, which provides that whenever the commission of a crime by a party or person is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The expression ‘beyond reasonable doubt’ does not mean ‘proof beyond all shadows of doubt’ it simple means that ‘the evidence of the prosecution against an accused person must be strong and direct, leaving no remote possibility which can be dispensed with, may however be left in favour of the accused person. In discharging this burden of proof placed on the prosecution, the prosecution is required to produce a positive and credible evidence which must be direct, or if circumstantial, it must be of such quality or cogency that a court could safely rely on it in coming to its decision in the case. See MBENU VS THE STATE (1988) 3 NWLR (PT84) 615; ADETOLA VS THE STATE (1992) 4 NWLR (PT235) 267.
The Supreme Court in the case of NWEKE VS STATE (2001) 4 NWLR (PT.704) 586 while interpreting the phrase ‘beyond reasonable doubt’ referred with approval to the decisions in the cases of BENSON IKOKU VS ENOCH OIL (1962) 1 ALL NLR 194 (1962) 1 SCNLR 307 and NWANKWERE VS ADEWUNMI (1966) 1 ALL NLR 129: (1966) 1 SCNLR 356 and held as follows:-
“…Section 137 (1) of the Evidence Act, now Section 138 (1) of the Evidence. This section was interpreted…proof therefore must be consistent with; (1) Active participation in the commission of the crime…Be it noted that if only culpatory evidence of participation in a crime is given and which is equally open to an interpretation consistent with the innocence, it must be construed in Appellant’s favour……. In a criminal trial, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt…
(2) Circumstantial evidence which arises when there is no eye witness to the perpetration of crime…”
In the instant case, the one and only eye witness to the robbery incident and the victim of the alleged robbery Inspector Obaka Ochigbo gave evidence as PW1. He testified as follows:-
I know the accused person, I and the accused worship in the same Living Faith Church, Idah, between the year 2001 and 2002 the accused person was charged for criminal conspiracy, house breaking and theft in the house of one Jonathan Jimo at Ilona Housing Estate. I was the person who prosecuted the case where the accused and five others admitted the offence where they were convicted and sentenced to a fine of N2,000 each. I also prosecuted the case when the accused attempted to commit suicide. So I know the accused person very well.
On 1/11/2002 at about 10pm I went to bed with my wife, Anthonia Obaka, my brother in-law about eight years old. At about i am on the 2/11/2002 I saw a bright torchlight through the window of my bedroom, I quickly challenged “‘who are you” I then woke my wife not to talk. The person was still standing there with his torchlight. I took my right hand and fell her down so that in the event of firing shot my wife would be protected.”
The robbers then gained entrance through the door of my kitchen. The next thing I heard from my parlour is open your door or I will force it open. I have no option than to open my door. So I opened my door. When I opened my door three armed men entered my bedroom and asked me, “where is the money?” I asked them which kind of money are you asking of. From there one of the people opened his gun and brought out a cartridge and that if I dare talk they will kill me. I collected my salary of the month of October on 1/11/02. My wife told me to give all the money to them so that they should not kill us. The total amount I gave to the thieves was N11,800.00. There was one short man, the robbers were calling Omo-boy and it was that man who was asked to count the money. This man used his torchlight to count the money and said that the money is still remaining behind because the number of the money is serial and the amount I brought out showed that I am still keeping some out with me. The amount I collected from the Bank was N20,000.00 new notes. The robbers ordered me to put on my light. When the robbers put on the light my wife saw the robbers but was quickly ordered to cover their (sic) eyes and so she did. The robbers then ordered my wife to leave the bed side so that they can remove my mattress. It was then I looked and saw that it was the accused now standing before now that was giving the order. Later the accused told one robber called Omo boy that it appeared I have seen them and that he should show me. The Omoboy then gave me a slap on my face and I fell down immediately. The Omoboy had wanted to open his gun when the accused person told him to hold on until my room is fully searched. The robbers opened my wife’s Ecolac box together with my own box. My wife told them to take away the whole property so as to save my life.
When the robbers finished searching my room, the accused ordered Omo boy to order me to go to my bed in Yoruba language and that I should be fired in the bed. Since I understood the Yoruba language I could hear all what the accused told Omo boy to do to me.
Omo boy then ordered me to go to bed and lie down and ordered my wife to leave the room but my wife refused to leave. The Omoboy then cocked his pistle and when he waited to pull the trigger then I told him that if it is money they wanted I have another money in my kitchen hidden in gari. The accused then grabbed me on my back while Omo boy was guarding my wife and they dragged me to the kitchen. It was there I saw another robber standing at the entrance of the kitchen warning me that if I do not bring out the money they will blow off my head… I said that it is better to die at this stage than to die as a coward since I am out of my bedroom where my wife was. From there I then jumped and hit the man with the gun with my legs and both of us fell by the kitchen down. The man’s gun fell down there got (sic) when I attempted to remove the gun from the ground to disarm the man, then another man used his own leg and kicked me with his legs so I staggered and I could not pick the gun. I then decided and jumped over the fence of my compound. It was there one of the robbers fired at me at close range. I could not jump over the fence again so I decided to face the men, one woman and three males including the accused person. When I want to escape from there I did not know there was a foundation I fell over the foundation pit dug behind my compound.
It was there the accused came round got hold of me and called on one Omo boy, a very short man. Before the said Omo boy arrived at the place, I was able to fell the accused down and escaped from there. As I was attempting to escape into the bush then another foundation made behind the house fell me down and it was there one of them fired at me. I managed and escaped into the bush. I sustained some injuries at the spot I was fired at. All over my body one can see sign pellets.
After my escape I crawled to Flat 7 Room 7 and met the occupant of the room and I begged him to convey me to the police station but he told me he could not accompany me down because he too was robbed.
It was at about 6am that morning that I was able to go to the police station where I was taken to the General Hospital Idah for treatment of my injuries. I was treated and discharged.
During the robbery my entrance door from the kitchen at the back was damaged. Apart from my money and my video machine cassette no other properly was removed. The video engine is valued at N9,500.00 while the cash is N11,800.00 in N200 denomination. I do not know the value of the door because I am not its owner. I am only a tenant.”
PW1 stated under cross examination as follows:-
“I never told the police that the robbery took place in police quarters but at Ilona Estate Flat 1 Room 1. I earlier stated that the co-tenant I met in Flat 7 Room 7 told me he too was robbed so he could not accompany me to the police station. My cotenant who was also robbed reported at the police station at the same time with me. I cannot tell when the accused was arrested after the robbery because it is a long time ago.
I was in company of the IPO when the house of the accused was searched. None of my items was recovered from the accused house. No gun was recovered from the accused.
Before the robbery I know the accused person because we worship in same Church, Living Faith. I told the police that one of those who robbed me is the accused person. I did not accompany the police when they were to arrest the accused because they know his place of work. Apart from ordering my wife to lie down and face down they did not do any charm to her.”
That was the evidence upon which the Appellant was tried and convicted for the offences of conspiracy and armed robbery. The evidence of PW2, the IPO was to the effect that when he was detailed to investigate he accompanied PW1 to the house of the accused and PW1 identified the accused to him and he invited him to the police station. He recorded a statement from him which was admitted in evidence as Exhibit 1. They then went to the scene of crime with team of investigators. That was his evidence. The Appellant on the other hand testified as follows:-
“The charge against me is false. One policeman called Ochigbo (PW1) came with policemen numbering two and met me at home and said there is a robbery incident and invited me to the police station. I told them I do not know about the robbery. I was sick and was at home. At the station I was taken back to my house where my house was searched. A lady student who was my neighbour was asked to sign the search warrant but nothing was found in my room. The police asked the lady where I slept last night and he (sic) told them that I slept inside the compound. We then went back to the police station. On the second day we were taken to Lokoja. At Lokoja, I was also asked and I replied that I did not know anything PW1 was saying about me. Then the police in Lokoja brought me back to Idah for further investigation. When we came back to Idah the police in the state C/O who brought me down to Idah and started to quarrel with the IPO and the complainant (PW1) and they said Ochigbo (PW1) was lying. The police in Lokoja did not find anything from me.
PW1 said the robbery was committed in the police quarters and at another time PW1 said it was at the Ilona Estate.
As the police from Lokoja discovered that I have no hand in the robbery that was committed in the place, so they started to quarrel between PW1 and the people and PW2 the IPO and then returned back to Lokoja.
At Lokoja the police called me and told me I did not commit any robbery and that no robbery ever took place. I was then transferred back to Idah. I have nothing more to say to court.”
This evidence of the Appellant was not believed by the learned trial judge. In convicting the Appellant, the learned trial judge held as follows:-
“in the conclusions I am satisfied that the prosecution have proved that the accused conspired together with other robbers still at large to do an illegal act and in furtherance of their agreement forced their way into PW1 house at Ilona Estate Idah armed with dangerous weapons and stole property belonging to PW1 and his wife. The prosecution have therefore proved their case beyond reasonable doubt as required by law.
I find the accused person guilty of the offences charge (sic) and he is convicted according.”
The main contention of the Appellant in this appeal is that the evidence adduced by PW1 upon which the learned trial judge relied and convicted the Appellant is not capable of being believed and there is therefore no proof beyond reasonable doubt. The argument was that there were inconsistencies in the statement of PW1 gave to the police and his evidence before the trial court. It is argued that PW1 in his statement to the police stated that the robbers made up their mind to kill him after taking his money because he is a policeman while in his evidence before the court he stated the robbers said he should be killed because the Appellant stated he looked directly to his face and could then identify him. It is also argued that in his statement to the police PW1 stated that one of the robbers wanted to shoot him but was stopped that he should be shot after his room has been searched and it was after this his bedroom light was switched on but he told the court that the robbers wanted him dead after his room light was switched on as Appellant realized he might recognize him ordered Orno boy to shoot him while on the bed in Yoruba language. It is also argued that PW1 stated to the police that the robbers fired at him four times, one when he was on top of one of the robbers while he told the court the robbers fired at him two times one at close range.
The procedure in establishing contradictions between the previous statement of a witness and his evidence in court on the same issue is provided in Sections 199 and 209 of the Evidence Act cap 122 LFN, 1990.
Sections 199 and 209 of the Evidence Act Cap 122 LFN, 1990 provides as follows:-
A witness may be cross examined as to previous statements made by him in writing or reduced into writings and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
Section 209
“A witness may be cross-examined as to previous statements made by him in writing relative to the subject-matter of the trial without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:
Provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it shall think fit.”
The combined effect of these provisions is that a witness may be cross-examined as to any previous statement made by him or reduced into writing by someone for him or on his behalf or a statement made by a witness to the police provided such statement is relevant to the matters in controversy between the parties and the statement need not be shown to the witness. However, if the cross examination is intended to contradict his evidence with the statement, then the attention of the witness must be called to the circumstances in which the witness made the statement and to those parts of the statement which the party cross-examining wishes to use for the purpose of contradicting the witness. see MADUMERE VS OKAFOR (1996) 4 NWLR (PT.634); and SAMUEL THEOPHILUS VS STATE (Supra), what this in effect means is that before a contradiction can be said to be established, the contradictions on the previous statement and the evidence of the witness must first be pointed out to the witness so as to give him an opportunity to explain before the contradiction can be said to have been established.
In the instant case, there was nowhere in the cross examination of PW1 by the Appellant, that reference made to the previous statement made by the PW1 to the police and such contradictions pointed out between it and his evidence in court. In this circumstance, I agree with the submission of the learned counsel for the Respondent that the Appellant having denied the PW1 the opportunity of explaining the contradictions whilst in the witness box cannot now turn around and raise any issue on them, copies of statement of PW1 to the police was attached to the application for leave to prefer charges and the Appellant had the opportunity to confront PW1 with his statement to the police whilst in the witness box but he failed to do so. Learned counsel for the Respondent was right when he submitted that the failure of the Appellant to confront PW1 in the witness box with his previous statement is fatal to the submission of the Appellant on this issue. The discrepancies or inconsistencies identified by the Appellant in both the statement of PW1 to the police and his testimony before the court as outlined in his brief of argument were not put to the PW1 while in the witness box for him to be able to explain if he can the discrepancies between the two statements as required by Sections 199 and 209 of the Evidence Act. The reference to the previous statement of PW1 to the police not in evidence in the proceedings leading to this appeal cannot now be heard to make an issue out of it. Same is hereby discountenanced. Now the question is, from the evidence of PW1 as reproduced above, is such evidence so strong and direct as to find the Appellant guilty of the offences of conspiracy and armed robbery, that is can a reasonable tribunal or court rely on such evidence to secure a conviction of the Appellant?
The general rule is that no particular number of witnesses is required for the proof of any fact and generally speaking a person can be convicted of any offence on the oath of a single adult witness. See UGWANBA VS THE STATE (1993) 5 NWLR (PT.660); NWAMBE VS THE STATE (1995) 3 NWLR (PT385); and NWAEZE VS THE STATE (1998) 2 NWLR 1; just as a plaintiff in a civil suit can succeed on the evidence of a single witness without any other confirmation of the witness evidence by the testimony of another witness or by any other circumstances. However, there is no rule of law or practice that says the court must act on the evidence of a single witness as the court has to be exceedingly careful in convicting an accused person on the evidence of a single witness without more especially for serious offences like murder and armed robbery. A court does not take into account the number of witnesses for each side as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of such evidence. See OGBODU VS THE STATE (1986) 5 NWLR 294. In the instant case, the quality of evidence adduced by PW1 the only eye witness to the incident and its only victim is not strong and direct and therefore not capable of being believed without corroboration. The evidence of PW1 is so stereotyped that it creates doubt in the mind of the court as to the guilt of the Appellant. PW1 testified that the robbers shot him at close range, yet he continued fighting with the robbers until he escaped. PW1 also stated that he sustained injuries as a result of gun shots and was taken to the hospital where he was treated and discharged. PW2 did not corroborate such evidence. He did not give any evidence to the effect that when PW1 reported the matter at the police station, he observed some gun shots or injuries on PW1 and he took him to the hospital for treatment. There was no such corroboration from the evidence of PW2 that PW1 sustained injuries and was taken to the hospital and he was treated and discharged. There was also no medical report from PW1 or PW2 to show that PW1 sustained gunshot wounds in the course of the robbery and he was treated in the hospital. No medical doctor was called to give evidence as to the nature of the injuries sustained by PW1. The way PW1 struggled with five armed robbers fully armed and being fired at close range and felling on ditches dug as foundation and all the same manages to escape is highly improbable. PW1 further testified that there were other victims of the robbery operation at Ilona Estate Idah on the day he was robbed, however, the prosecution failed to call any other victim of the robbery thereby creating doubt as to whether any robbery took place in the said estate and more especially when PW2 the IPQ did not make reference to any other robbery at Ilona Estate Idah on that day in respect of which PW1 said the robbery victim of flat 7 room 7 also reported the incident at the police station almost at the time with him. After a report of the robbery incident was made at the police station the Appellant was arrested in his house on that very day as evidenced in his statement Exhibit 1 which was recorded on the day of the incident being 2/11/2002. A search was conducted in the house of the Appellant and no gun or any incriminating evidence was recovered from his room. Based on the above stated facts, it is my considered view that the evidence of PW1 is of such a very low quality and in the absence of corroboration; there is doubt as to the guilt of the Appellant, more especially when PW1 also testified that he prosecuted the Appellant twice for the offences of house breaking and theft in the same neighborhood where they all live and of an attempted suicide. This is in addition to the fact that they also worship in the same church.
PW1 having known the Appellant very well and armed with his criminal record and living in the same neighbourhood is not unimaginable for PW1 to frame up the Appellant as one of the robbers who robbed him of his properties on the date of the alleged robbery incident, that is, even if there was any robbery at all. The evidence of the PW1 clearly requires corroboration not as a matter of law but as a matter of practice in view of the serious nature of the charges against him, so as to dislodge any doubt in the mind of the court.
It is trite that the prosecution need to call witnesses of its choice. It is under no constitutional or statutory duly to call a particular witness or witnesses. Although a conviction may be made on the evidence of a single witness, it is always safer that the trial court to warns itself of the danger of convicting on the uncorroborated evidence of such a witness. The essence of corroborative evidence is to give support or strength to the assertion of the prosecution. That is why as a matter of practice, a trial court should be very slow to convict on the uncorroborated evidence of the prosecution. See IDION VS STATE (2008) 13 NWLR (PT1104) 225; STATE VS AZEEZ (2008) 14 NWLR (PT.1108) 439; and AKPA VS STATE (2008) 14 NWLR (PT.1106) 72.
Where there is doubt in the evidence of the prosecution witnesses such doubt will be resolved in favour of the accused person. In the instant case, the evidence of PW1, the only eye witness was so poor and improbable and in the absence of any corroborative evidence there is doubt as to the guilt of the Appellant in this case and the Appellant should be given the benefit of doubt. See CHUKWU VS THE STATE (1996) 7 NWLR (PT463) 686; IBEH VS STATE (1997) 1 NWLR (PT484) 632; and STATE VS AZEEZ (2008) 14 NWLR (PT1108) 439. Where therefore, there is doubt in the evidence of the prosecution witnesses, there cannot be any conviction and the Appellant is entitle to discharge and acquittal. There is therefore no proof of all the ingredients of the offences of conspiracy and robbery against the Appellant beyond reasonable doubt. Therefore, issues 1 and 2 are resolved in the negative in favour of the Appellant against the Respondent.
ISSUE 3
Whether failure to investigate the defence of alibi in this case was not fatal to the prosecution’s case.
Arguing this issue, learned counsel for the Appellant submitted that, there was no positive identification of the Appellant at the scene of the crime even though he conceded that the defence of alibi could not stand where the accused had been identified at the scene of crime, citing in support the cases of NJOVEN VS THE STATE (1998) ALLR Vol. 1224 (Q); AUGUSTINA DWUCHUKWU VS THE STATE (1998) 4 SCNJ 36; and DAN BASHAYA VS THE STATE (199B) 4 SCNJ 2021. It is submitted that the Appellant in his statement to the police after his arrest on the 2/11/2002 stated that on the said day, he closed from work took his bath, ate and due to tiredness he took medicine and slept. It is submitted that this means that the Appellant was sleeping at home when the robbery was taking place and he could not be at the scene of crime at the same time. It is further submitted that the police should have investigated this alibi but they failed to do so or failed to inform the court of their finding. It is submitted that the evidence of PW1 that he saw the Appellant on the 2/11/2002 among the robbers was highly improbable, unconvincing and not cogent as the Appellant would not have spared the life of the Respondent. He urged the court to hold that failure to investigate the alibi is fatal to the case of the prosecution and to resolve the issue in favour of the Appellant.
Responding, learned counsel for the Respondent submitted that the non investigation of the defence of alibi put by the Appellant to the police at the earliest opportunity has not occasioned a miscarriage of justice to the Appellant because there was positive evidence to the effect that the Appellant was present at the scene of crime on the 2/11/2002 and was actually given orders to members of his gang as the robbery operation progressed in the house of PW1. It is submitted that there was positive evidence fixing the Appellant to the scene of crime and thus, the non-investigation of the defence of alibi would not be fatal to the case of the prosecution. He relied on the cases of EYISI VS THE STATE (2000) 12 SCNJ 104 at 122; NJOVEN VS THE STATE (1973) NNLR at 78; (1973) 5 SC. 17 at 65; ODU VS THE STATE (2001) 5 SCNJ 115 at 120; AKPAN VS THE STATE (2002) 5 SCNJ 301 at 311; AIGUOREHIAN VS THE STATE (2004) 1 SCNJ 65 at 103; EBRI VS THE STATE (2004) 5 SCNJ 216 at 227 and DAGAYYA VS THE STATE (2006) 1 SCNJ 251 at 275. It is argued that the non-investigation of the defence of alibi raised by the Appellant was due to the fact there was positive evidence of PW1 which fixes the Appellant at the scene of crime on the day the robbery took place. The court was therefore urged to hold that the defence of alibi does not avail the Appellant in the instant appeal and to resolve this issue in favour of the Respondent and to dismiss the appeal on this issue.
Having resolved issues 1 and 2 in favour of the appellant, that by itself determines this appeal and there is therefore need for the court to divulged itself into consideration of other issues for determination in the appeal. However, for whatever it is worth, this issue will be considered. It is now trite that, once an accused person sets up the defence of alibi, the burden of disproving it rests on the prosecution. In other words, where an accused person sets up alibi in answer to a charge, he does not thereby assume responsibility of proving the answer. The onus still lies on the prosecution to prove beyond reasonable doubt that the accused person was not only at the scene of the crime but that he committed the offence.
In the instant case, the Appellant has stated that he was not at the scene of crime on the date of the incident as he was at home sleeping. He stated that when he closed from work, took his bath, ate and due to tiredness he took his medicine and slept. Once the defence of alibi is properly raised by an accused person, the police has a duty to investigate it and the prosecution a duty to disapprove it. However, once an accused person is fixed at the scene of crime, his defence of alibi must fail. In the instant case, the trial court believed the evidence of PW1 that he identified the Appellant as one of the people who attacked him on the day of the incident and that the Appellant was known to him as he prosecuted him twice and they also worship in the same church. However, the said evidence of PW1 has been found to be highly improbable and not capable of being believed. The defence of alibi is complete once the accused person discloses to the police his whereabouts without more at the time of the commission of the crime. There is no burden of proof on the accused person who puts forward an alibi as his defence. It will be a misdirection to refer to any burden as resting on an accused person in a case where he raised the plea of alibi. see YANOR VS STATE (1965) NMLR 337; ADEYEYE VS STATE (19681 NMLR 48; STATE VS OBINGA (1965) NMLR 172, STATE VS AZEEZ (2008) 14 NWLR (Pt.1108) 439. Where therefore the defence of alibi put forward by the accused person is not properly and adequately investigated, a conviction reached thereon must be quashed. This is so because where the defence of alibi succeeds, there is no need for the court to consider other elements involved in the offence charged as accused is taken not at the scene of the crime and the presumption will be raised that he did not ipso facto commit the crime charged. In other words, where a defence of alibi succeeds, that is the end of the case of the prosecution. The accused must be discharged and acquitted because he was not at the scene of the crime. See UKWUNMENYI VS STATE (1989) 4 NWLR (PT114) 131; UDEOBIE VS STATE (2001) 12 NWLR (PT728) 617; DOGO VS STATE (2001) 3 NWLR (PT699) 192; STATE VS AZEEZ (supra); TANKO VS STATE (2001) 16 NWLR (PT1114) 597; and IDIOK VS STATE (2008) 13 NWLR (PT.1104) 225. In the instant case, the prosecution has failed to investigate the defence of alibi put up by the Appellant to the police at the earliest opportunity and there is no positive evidence fixing the Appellant to the scene of crime. Consequently, this issue is also resolved in favour of the Appellant against the Respondent.
Having resolved all the issues in favour of the Appellant, the conclusion is that the appeal has merit and it is hereby allowed. The judgment of the trial court delivered on the 21st day of December, 2006 sentencing the Appellant on a two count charge of criminal conspiracy and armed robbery contrary to Sections 97(1) and 298 (C) of the Penal Code are hereby set aside.
The Appellant is accordingly discharged and acquitted.
Other Citations: (2009)LCN/3300(CA)
