Sunday v. State (2021)

[2021]16NWLR411

PETER SUNDAY

V.

THE STATE

SUPREME COURT OF NIGERIA

SC.102/2014

MARY UKAEGO PETER-ODILI, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C. (Read the Leading Judgment)

JOHN INYANG OKORO, J.S.C.

AMINA ADAMU AUGIE, J.S.C.

EJEMBI EKO, J.S.C.

FRIDAY, 8TH MAY 2020

CRIME – Offences – Offence of armed robbery – Ingredients of.

CRIM INAL LAW AND PROCEDURE – Contradiction -Contradiction in evidence of prosecution witnesses – Materialcontradiction – Effect of.

CRIMINAL LAW AND PROCEDURE – Offences – Offence of armedrobbery – Ingredients of.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Burden ofproof on prosecution in criminal case.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Extra-judicial statement of co-accused – Whether can groundconviction of accused.

CRIMINAL LAW AND PROCEDURE – Proof of crime – Extra-judicial statement of co-accused – Evidence on oath of co-accused – Distinction between – Whether statement admissibleagainst accus ed – Whether evidence given on oath evidenceagainst accused.

Sundayv.State

412

CRIMINAL LAW AND PROCEDURE – Proof of crime – Proofbeyond reasonable doubt – Meaning of.

EVIDENCE – Contradiction – Contradiction in the evidence ofprosecution witnesses – Material contradiction – Effect of.

EVIDENCE – Proof of crime – Burden of proof on prosecution incriminal case.

EVIDENCE – Proof of crime – Extra-judicial statement of co-accused – Whether can ground conviction of accused.

EVIDENCE – Proof of crime – Extra-judicial statement of co-accused – Evidence on oath of co-accused – Distinctionbetween – Whether statement admissible against accused -Whether evidence given on oath evidence against accused.

EVIDENCE – Proof of crime – Proof beyond reasonable doubt -Meaning of.

EVIDENCE – Witnesses – Witness who gave evidence in examination-in-chief – Where not available for cross-examination – Effect.

WORDS AND PHRASES – Proof beyond reasonable doubt -Meaning of.

Issues:

1.Whether, having regard to the material contradictionsin the evidence of PW1, the Court of Appeal oughtto have set aside the judgment of the trial court andallowed the appellant’s appeal.

2.Whether the prosecution by relying on exhibit“P3” proved the offence charged against the appellantbeyond reasonable doubt to enable the Court of Appealarrive at its judgment against the appellant.

Facts:

The appellant and two others were at the High Court ofOndo State, Akure on an information charged with two counts ofconspiracy to commit armed robbery and armed robbery contrary to

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR413

section 6(b) and 2(b) of the Armed Robbery and Firearms (SpecialProvisions) Act, Cap R.11 Laws of the Federation of Nigeria, 2004.

The prosecution’s case was that the alleged victim, PW1,rode a motorcycle for commercial purposes. On 2nd June 2004, theappellant and the other two accused persons approached him for acommercial ride from High School area to Olufoam area in Akure,Ondo State. On getting to their destination they asked PW1 to parkin a nearby bush where they alighted. One of them forcibly removedthe ignition key of the motorcycle while one of them drew a cutlassfrom his trousers on PW1 which action made him to retreat. Theappellant and the other two accused persons rode the motorcycleaway.

PW1 immediately ran to a nearby Mobile Police QuarterGuard where two policemen were detailed to follow him to thelocus criminis. The motorcycle was traced and later found in abush covered with leaves. The policeman took the motorcycle tothe police station. Later that day, the 1st accused was apprehended.At the police station, he mentioned the names of the other accusedpersons, including the appellant, with whom he had robbed PW1.

On the other hand, the appellant’s case was that on 2nd June2004, he and the other accused persons on their return from churchtook PW1’s commercial motorcycle from High School to Shagarivillage, Akure. On arriving at their destination, the 1st accused gavePW1 a sum of N40.00 as fare for their ride but PW1 refused to acceptthe money, claiming that his charge was N60.00. The appellantand 3rd accused begged PW1 to accept the amount offered. Theyseparated but PW1 later brought the police to arrest the appellant’sfather in their house, since he was not available in the house. Helater went to the police station to know why his father was arrested.His father was released on bail while he was arrested.

At the trial, the prosecution, in order to prove the charge againstthe appellant and his co-accused, called three witnesses, includingthe complainant, who was the PW1. The other two prosecutionwitnesses were policemen who were said to have investigated thecomplaint.

PW1 made two statements to the police, the first on 2nd June2004 when the incident took place and the second on 7th June 2004.The two statements were admitted and marked exhibits “P1” and“P2” respectively. The first was at Ijapo Police State while the otherwas at the Special Anti-Robbery Squad (SARS). In exhibit “P1”, he

NigerianWeeklyLawReports8November2021Sundayv.State

414

stated that two boys he carried robbed him of his motorcycle but inexhibit “P2”, he stated that they were three.

Under cross-examination, PW1 admitted that it was afterthe person who took the right side switched off the ignition of hismotorcycle and he was demanding for his money that the cutlasswas brought out from his cloth but that he told the police earlier thatthe person who brought out the cutlass emerged from the bush.

PW2, a Police Constable, testified that he obtained statementsfrom the appellant and other two co-accused persons under cautionand after reading the statements to each of the accused got themto sign their respective statements. When he was asked about thestatements, he stated they were with the Special Anti-RobberySquad.

PW3, a Sergeant, was attached to the State CID Special Anti-Robbery Squad. He claimed to have obtained the statements ofPW1, the appellant and the other accused persons on 7th June 2004.He testified that after the appellant and the other accused personssigned their respective statements, he countersigned and they weretaken before a Senior Police Officer to endorse the statements. Aconduct of their houses did not reveal anything incriminating wasfound.

When the witness attempted to tender three statements of theappellant and the other accused persons, there was objection andthe trial court ordered a trial-within-trial. The trial court in its rulingheld that the statements were obtained involuntarily and did notallow them to be tendered. Upon the rejection of the statements,PW3 subsequently refused to attend court and did not complete hisevidence-in-chief.

A confessional statement made by the 1st accused person to thepolice was admitted without objection and it was marked as exhibit“P3” the 1st accused person’s alleged confessional statement.

The appellant and the other accused persons testified in respectof their defence but called no other witnesses.

Upon conclusion of hearing, the trial court in its judgmentfound the appellant and the other co-accused persons guilty ascharged. It convicted and sentenced them to death by hanging.In convicting the appellant, the trial court relied on exhibit “P3”,although the appellant did not adopt the statement and it found thatthe exhibit corroborated the evidence of PW1. The trial court alsorelied on the statements of PW1, exhibits “P1” and “P2”.

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR415

Dissatisfied with the judgment, the appellant appealed to theCourt of Appeal. The Court of Appeal in its judgment allowed theappeal in part and commuted the death sentence of the trial courtto life imprisonment. The Court of Appeal held that there werematerial contradictions and doubts in the prosecution’s evidencebefore the trial court which could be of assistance to the appellant.It found that in his statement made to the police on the day theincident happened, PW1 contradicted himself with his testimonyduring trial when he stated that he carried only two boys and thatthe third boy only emerged from the bush with a cutlass as the othertwo boys he had carried alighted from the motorcycle.

Still dissatisfied, the appellant appealed to the Supreme Court.

Held (Unanimously allowing the appeal):

1.On Ingredients of offence of armed robbery –

The ingredients required to establish or prove theoffence of armed robbery are:

(a)that there was a robbery;

(b)that the robbery was armed robbery; and

that the accused was the armed robber or(c)one of the robbers.

The proof the prosecution is required to establishin a charge of armed robbery is proof beyondreasonable doubt. [Alabi v. State (1993) 7 NWLR (Pt.307) 511; Dibie v. State (2007) 9 NWLR (Pt. 1038) 30referred to.] (Pp. 430, paras. E-F; 446 paras, G-H)

2.On Effect of material contradiction in evidence ofprosecution witnesses –

Where there are contradictions in the evidenceof prosecution witnesses on a material fact,such contradictions ought to be explained bythe prosecution by evidence. When there is nosuch explanation by the prosecution, the courtis not expected to and should not speculate on animagined explanation for such contradictions.Without credible evidence offering explanationfor the material contradiction or inconsistency theaccused person is entitled to the benefit of doubt as

NigerianWeeklyLawReports8November2021Sundayv.State

416

the court is not entitled to pick and choose whichaccount to believe and which account not to believe.With such material contradiction, the prosecutioncannot be said to have proved their case againstthe accused beyond reasonable doubt. In the caseof a witness who had made a previous statementinconsistent with the evidence given at the trial, thecourt has been slow to act on the evidence of suchwitness. The evidence given at the trial should beregarded as unreliable and the previous statement,whether sworn or unsworn, does not constituteevidence upon which the court can act. A witnesswhose testimony on oath is shown to be inconsistentwith his previous statement is judicially regardedas an unreliable witness. [Arehia v. State (1982) 4SC 78; Joshua v. Queen (1964) 1 All NLR 1; Muka v.State (1976) 9 -10 SC 305; Onubogu v. State (1974) 9SC 1; Ateji v. State (1976) 2 SC 79 referred to.] (Pp.433, paras. D-E; 434 paras. D-H)

Per ARIWOOLA, J.S.C. at page 434., paras. A-C:

“From the statement made to the police atthe earliest opportunity few hours after thealleged attack on PW1, he had told the policethat one out of the two he had brought on hismotorcycle brought out a cutlass from hisbody which was not feasible on the carrier ofthe cutlass as they mounted or embarked onhis motorcycle. He however said in his oraltestimony that another person came out of thebush with a cutlass, as the third person. It isnoteworthy that the prosecution had statedthat nothing incriminating was found on theappellant or in his house and the object ofthe alleged robbery – the motor cycle was notfound on or in possession of any of the accusedpersons.”

Per EKO, J.S.C. at Pages 451-452 paras. G-D.:

“The PW3, the complainant, was shownto have made two materially inconsistentstatements. That is, his sworn testimony and

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR417

the previous extra judicial statement to thePolice. No explanation was offered for theinconsistencies as to whether: two and not threeboys participated in the alleged robbery on 2 ndJune, 2004; and whether the boy who drew themachete on him came suddenly from the bushor was infact one of the two passengers heconveyed on his motorcycle to the scene of therobbery. Without credible evidence offeringexplanation for the material contradiction orinconsistency the accused person is entitled tothe benefit of doubt as the court is not entitledto pick and choose which account to believe andwhich account not to believe: Boy Muka v. TheState (1976) 9 -10 SC 305. With such materialcontradiction, the prosecution cannot be saidto have proved their case against the accusedbeyond reasonable doubt: Onubogu v. The State(1974) 9 SC 1; Ateji v. The State (1976) 2 SC 79.A witness, whose testimony on oath is shownto be inconsistent with his previous statements,is judicially regarded as an unreliable witness:R v. Golden (1960) 1 WLR 1169 at 1172 citedwith approval in Joshua v. The Queen (1964) 1All NLR 1 at 3 – 4.Clearly, the PW1, the onlymaterial witness called by the prosecution wasan unreliable witness. The two courts belowerred in relying on the PW1’s evidence to convictthe appellant for robbery and thereby deniedhim the judgment of acquittal and dischargehe was, in the circumstance, entitled to.”

3.On Effect of material contradiction in evidence ofprosecution –

Where there are material contradictions andinconsistencies in the evidence of the prosecution,the accused is entitled to be given the benefit of thedoubt so created as a result of the inconsistencies.In other words, if there are material contradictionsin the evidence of the prosecution as to the charge,

NigerianWeeklyLawReports8November2021Sundayv.State

418

doubt will be created and the benefit of the doubtmust be given to the accused person, in which casehe is entitled to be discharged. In the instant case,the Court of Appeal found that there were materialcontradictions and inconsistencies on the evidenceby the prosecution which led the Court of Appeal tofind the appellant not liable for armed robbery ascharged but for robbery and reduced the sentencefrom death to life imprisonment. The Court of Appealought to have resolved the doubt in favour of theappellant. [Onubogu v. State (1974) 9 SC 1; Nwabuezev. State (1988) 4 NWLR (Pt. 86) 16; Galadima v. State(2018) 13 NWLR (Pt. 1636) 357; Ikemson v. State(1989) 3 NWLR (Pt. 110) 455; Kalu v. State (1988) 4NWLR (Pt. 90) 503; Abogede v. State (1996) 5 NWLR(Pt. 448) 270; Arehia v. State (1982) 78 SC 76 referredto.] (Pp. 434, paras. C-H; 450, paras. A-B)

4.On Whether extra-judicial statement of co-accusedcan ground conviction of accused –

The statement of an accused person made to thepolice is only evidence against him but not evidenceagainst his co-accused person. It is an error in lawto convict an accused on the statement of anotheraccused to the police. It is a travesty of justiceand gross violation of all known rules of evidence.The confessional statement of a co-accused is noevidence against an accused person who has notadopted the statement. In the instant case, the trialcourt was in error in admitting and relying onexhibit “P3”, the statement of a co-accused madeto the police to convict and sentence the appellant.Also, the Court of Appeal was wrong in relying onthe statement to affirm the appellant’s conviction,who neither made any confessional statement noradopted exhibit “P3” as his own. [Ohuka v. State(No.2) (1988) 4 NWLR (Pt. 86) 36; Jimoh v. State(2014) 10 NWLR (Pt.1414) 105; Ozaki v. State (1990)1 NWLR (Pt. 124) 92; Subuowan v. C.O.P. (1961)NNLR 257 referred to.] (Pp. 439-440, para. H-E)

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR419

5.On Distinction between extra-judicial statement of co-accused and evidence on oath of co-accused –

There is a gulf of difference between an extrajudicial statement made by a co-accused andevidence given by a co-accused on oath. An extra-judicial statement by a co-accused remains astatement and not his evidence. It is binding onthe maker only. A statement made to the policeduring the investigation of a case may amount toan admission. Such a statement is evidence againstthe maker on that score. But such a statement isdefinitely not evidence against a co-accused. In fact,it is inadmissible against a co-accused. However, ifa co-accused during trial goes into the witness boxand repeats on oath what he had told the police inhis statement, then that evidence becomes evidencefor all purposes including being evidence against aco-accused. Even then, such evidence should be andis always suspiciously regarded. However, wherethe evidence incriminating an accused personcomes from a co-accused, the court is at liberty torely on it, as long as the co-accused, who gave suchincriminating evidence against the accused person,was tried along with that accused. [Suberu v. State(2010) 8 NWLR (Pt. 1197) 586; Enitan v. State(1986) 3 NWLR (Pt. 30) 604; R. v. Ajani (1936) 3WACA 3; Badmus v. C.O.P. (1948) 12 WACA 3611;R. v. Alli (1949) 12 WACA 432; R. v. Ume (1942) 8WACA 123; Dairo v. State (2018) 7 NWLR (Pt. 1619)399; Micheal v. State (2008) 13 NWLR (Pt. 1104) 361referred to.] (Pp.441, paras. B-G; 450, para. G-H)

Per AUGIE, J.S.C. at pages 450-451., paras. H-B:

“In this case, the said exhibit P3, which thetwo lower courts relied upon in convicting theappellant, was the statement of the first accusedto the Police and it is clear, therefore, that thetwo lower courts thereby fell into serious error,which must count in favour of the appellant,who neither made a confessional statement tothe Police nor adopted the said exhibit P3, as

NigerianWeeklyLawReports8November2021Sundayv.State

420

his own statement. In other words, since hisconviction is hinged upon the said exhibit P3,which is not legal evidence before the court,as it was made by a co-accused, and there isno other credible evidence upon which theappellant’s conviction can be sustained, it goeswithout saying that his conviction must be setaside.”

6.On Effect where witness who gave evidence inexamination-in-chief not available for cross-examination –

Where a witness who testified in chief has not madehimself available for cross-examination, the partialevidence of the witness cannot be accorded anyevidential value by the court as relying on suchinchoate evidence would amount to depriving theadverse party of his right to fair hearing. In theinstant case, PW3 through which the prosecutiontendered exhibit “P3” at the trial court did notpresent himself for cross-examination. Therefore,the appellant lacked the opportunity to testthe evidence of PW3 against the fire of cross-examination. Both the trial court and the Court ofAppeal were wrong to have countenanced exhibit“P3” and relied on it to convict the appellant. (P.449, paras. F-H)

7.On Burden of proof on prosecution in criminal case –

In a criminal trial, the prosecution is expected toestablish the charge on proof beyond reasonabledoubt. Proof beyond reasonable doubt means theestablishment of all the ingredients of the offencecharged in tandem with the dictates of section 138of the Evidence Act and section 36(5) of the 1999Constitution (as amended). There is no burden onthe prosecution to prove its case beyond all doubt.The burden is to prove its case beyond reasonabledoubt with emphasis on reasonable doubt. Notall doubts are reasonable. Reasonable doubt will

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR421

automatically exclude unreasonable doubt, fancifuldoubt and speculative doubt, a doubt borne out bythe circumstance of the case. In the instant case, theprosecution failed to prove the case of conspiracy tocommit armed robbery and armed robbery againstthe appellant. [Alabi v. State (1993) 7 NWLR (Pt.307) 511; Bakare v. State (1987) 1 NWLR (Pt.52)579; Okagbue v. C.O.P. (1965) NMLR 220; Ume v.State (1973) 2 SC 9 ; Obue v. State (1976) 2 SC 141;Lori v. State (1980) 8-11 SC 81; Khan v. State (1991) 2NWLR (Pt.172) 127 referred to.] (P.442, paras. B-F)

8.On Meaning of proof beyond reasonable doubt –

Under Nigerian criminal jurisprudence, in order forthe prosecution to succeed in the trial of an accusedperson charged with the commission of crime, itis its duty to establish the case beyond reasonabledoubt. However, proof beyond reasonable doubtdoes not mean proof beyond all shadow of doubt.Proof beyond all reasonable doubt does not mean orimport or connote beyond any degree of certainty.The term strictly means that within the bounds ofevidence adduced and staring the court in the face,no tribunal of justice worth its salt would convicton it having regard to the nature of the evidence ledand the law marshalled out in the case. Evidence ina criminal trial that is susceptible to doubt cannotbe said to have attained the height or standard ofproof that can be said to be beyond all reasonabledoubt. Regardless of what one might think in a givenstate of affairs in a given case, neither suspicion norspeculation or intuition can be a substitute for aproof beyond all reasonable doubt. It is a proof thatprecludes all reasonable inference or assumptionexcept that which it seeks to support and must havethe clarity of proof that is readily consistent withthe guilt of the person. [State v. Gwangwan (2015)13 NWLR (Pt. 1477) 600; State v. Onyeukwu (2004)14 NWLR (Pt. 893) 340 referred to.] (Pp. 442-443,paras. F-D)

NigerianWeeklyLawReports8November2021Sundayv.State

422

Nigerian Cases Referred to in the Judgment:

Abogede v. State (1996) 3 NWLR (Pt. 448) 270

Akalezi v. State (1993) 2 NWLR (Pt. 273) 1

Akibu v. Oduntan (1992) 2 NWLR (Pt.222) 210

Alabi v. State (1993) 7 NWLR (Pt.307) 511

Alarape v. State (2001) 5 NWLR (Pt. 705) 79

Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437

Archibang v. State (2006) 14 NWLR (Pt. 1000) 349

Arehia v. State (1982) 4 SC 78

Ateji v. State (1976) 2 SC 79

Badmus v. C.O.P. (1948) 12 WACA 3611

Bakare v. State (1987) 1 NWLR (Pt.52) 579

Bassey v. State (2012) 12 NWLR (Pt.1314) 209

Dairo v. State (2018) 7 NWLR (Pt. 1619) 399

Dibie v. State (2007) 9 NWLR (Pt.1038) 30

Emeka v. State (2001) 14 NWLR (Pt.734) 666

Enitan v. State (1986) 3 NWLR (Pt. 30) 604

Eseu v. The People of Lagos State (2014) 2 NWLR (Pt.1390) 109

Galadima v. State (2018) 13 NWLR (Pt. 1636) 357

Gbadamosi v. State (1992) 9 NWLR (Pt.266) 465

Ibe v. State (1992) 5 NWLR (Pt.244) 642

Idiok v. State (2008) 13 NWLR (Pt. 1104) 225

Idise v. Williams Int’l Ltd. (1995) 1 NWLR (Pt. 370) 142

Igbinovia v. State (1981) 2 SC 5

Ikemson v. State (1989) 3 NWLR (Pt. 110) 455

Jimoh v. State (2014) 10 NWLR (Pt.1414) 105

Joshua v. Queen (1964) 1 All NLR 1

Kalu v. State (1988) 4 NWLR (Pt. 90) 503

Khan v. State (1991) 2 NWLR (Pt.172) 127

Lori v. State (1980) 8-11 SC 81

Micheal v. State (2008) 13 NWLR (Pt. 1104) 361

Muka v. State (1976) 9 -10 SC 305

Nasamu v. State (1979) All NLR 193

Nwabueze v. State (1988) 4 NWLR (Pt.86) 16

Nwankwoala v. State (2006) 14 NWLR (Pt.1000) 663

Obue v. State (1976) 2 SC 141

Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218

Ohuka v. State (1988) 4 NWLR (Pt. 86) 36

Okagbue v. C.O.P. (1965) NMLR 220

Olukoya v. Fatulude (1996) 7 NWLR (Pt. 462) 516

NigerianWeeklyLawReports8November2021Sundayv.State

[2021]16NWLR423

Onubogu v. State (1974) All NLR 561

Ozaki v. State (1990) 1 NWLR (Pt.124) 92

R. v. Ajani (1936) 3 WACA 3

R. v. Alli (1949) 12 WACA 432

Rex v. Ume (1942) 8 WACA 123

State v. Gwangwan (2015) 14 NWLR (Pt. 1477) 600

State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340

Suberu v. State (2010) 8 NWLR (Pt. 1197) 586

Subuowan v. C.O.P. (1961) NNLR 257

Ugwumba v. State (1993) 5 NWLR (Pt.296) 660

Ume v. State (1973) 2 SC 9

Unity Bank (Nig.) Plc v. Bouari (2008) 7 NWLR (Pt.1086) 372

Yusufu v. Obasanjo (2005) 18 NWLR (Pt. 956) 96

Foreign Case Referred to in the Judgment:

R v. Golden (1960) 1 WLR 1169

Nigerian Statutes Referred to in the Judgment:

Armed Robbery and Firearms (Special Provisions) Act, Cap.R.11, Vol. XIV, Laws of the Federation of Nigeria, 2004, Ss.6(b), 2(b)

Evidence Act, 2011, Ss. 251(1); (17)(2): 138

Constitution of the Federal Republic of Nigeria, 1999 (asamended), S.36(5)

Appeal:

This was an appeal against the decision of the Court of Appealallowing in part the appeal against the judgment of the High Courtwhich convicted and sentenced the appellant for armed robbery.The Supreme Court, in a unanimous decision, allowed the appealand discharged and acquitted the appellant.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Mary UkaegoPeter-Odili, J.S.C. (Presided); Olukayode Ariwoola,J.S.C. (Read the Leading Judgment); John Inyang Okoro,J.S.C.; Amina Adamu Augie, J.S.C.; Ejembi Eko, J.S.C.

Appeal No.: SC.102/2014

NigerianWeeklyLawReports8November2021Sundayv.State

424

Date of Judgment: Friday, 8th May 2020

Names of Counsel: Kazeem Gbadamosi, Esq. (with him,Kazeem A. Adedeji, Esq. and Akingubi Akande, Esq.) -for the Appellant

Akinyemi Olujinmi, Esq. – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Akure

Names of Justices that sat on the appeal: Sotoye Denton-West, J.C.A. (Presided and Read the Leading Judgment);Mojeed Adekunle Owoade, J.C.A.; Ifeoma Jombo-Ofo,J.C.A.

Appeal No.: CA/AK/82C2/2011

Date of Judgment: Monday, 5th December 2013

Names of Counsel: Kazeem A. Gbadamosi, Esq. – forthe Appellant

Taiwo Olubodun Esq. (Deputy Director, CriminalLitigation) Ministry of Justice, Ondo State – for theRespondent

High Court:

Name of the High Court: High Court of Ondo State,Akure

Name of the Judge: Akeredolu, J.

Suit No.: AK/55C/2005

Date of Judgment: Thursday, 13th September 2007

Names of Counsel: Anthony Maclean Esq, Senior LegalOfficer – Appeared for the State

B. O. Ibikunle Esq, Chief Legal Officer (with him, N.C.Ndubuisi Esq) – for the 1 st accused person

B. O. Ibikunle Esq also held brief of O.B. Adeloye Esq- for the 2nd & 3rd accused persons

Counsel:

Kazeem Gbadamosi, Esq. (with him, Kazeem A. Adedeji, Esq.and Akingubi Akande, Esq.) – for the Appellant

Akinyemi Olujinmi, Esq. – for the Respondent

NigerianWeeklyLawReports8November2021Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR425

ARIWOOLA, J.S.C. (Delivering the Leading Judgment): Thisis an appeal against the judgment of the Court of Appeal, AkureDivision, coram: Sotoye Denton-West, J.C.A, Mojeed AdekunleOwoade, J.C.A, C. Ifeoma Jombo-Ofo, JCA, delivered on the 5thday of December, 2013 which, in the lead judgment of the presidingJustice partly allowed the appeal by committing the death sentenceof the trial court to life imprisonment for the appellant.

The appellant and two others had been charged on aninformation with two counts as follows:

Count I –

Statement of Offence

Conspiracy to commit Armed Robbery contrary toSection 6(b) of the Armed Robbery and Firearms(Special Provisions) Act, Cap. R.11, Vol. XIV, Lawsof the Federation of Nigeria, 2004.

Particulars of Offence

Akpodee Simon, Peter Sunday and Mumuni Yusuf onthe 2nd day of June, 2004 at Olufoam area in the AkureJudicial Division did conspire together to commit afelony, to wit, armed robbery.

Count II –

Statement of Offence

Armed Robbery contrary to section 2(b) of the ArmedRobbery and Firearms (Special Provisions) Act, Cap.R.11, Vol. XIV, Laws of the Federation of Nigeria,2004.

Particulars of Offence

Akpodee Simon, Peter Sunday and Mumuni Yusufon the 2nd of June, 2004 at Olufoam area, Akure, inthe Akure Judicial Division while armed with guns,cutlasses and other dangerous weapons did rob FataiAbu ‘M’ of his Jinchang Suzuki Motor Cycle withReg. No. QC494 JTA valued Sixty Six Thousand Naira(N66,000.00)

The three accused persons were arraigned before the OndoState High Court of Justice, holden at Akure. At the trial whichcommenced on the 23rd November, 2007, the prosecution calledthree witnesses comprising the complainant and two Policemen.The three accused persons testified in their respective defence butcalled no other witness.

A

B

C

D

E

G

H

F

NigerianWeeklyLawReports8November2021Sundayv.State(Ariwoola,J.S.C.)

426

In the course of the trial, a trial within trial was ordered andconducted to determine the admissibility of the statements saidto have been made by the accused persons at the Special AntiRobbery Squad (SARS). The objection to the admissibility of thesaid statements was upheld in favour of the accused persons. Thestatements automatically ended up been rejected and was so markedby the court.

The prosecution’s case was that the alleged victim – PW1,one Abu Fatai rode a motorcycle for commercial purposes. Onthe 2nd day of June, 2004, the appellant and the other two accusedpersons approached him for a commercial ride from one HighSchool area to Olufoam area in Akure, Ondo State. On getting totheir destination they asked PW1 to park in a nearby bush wherethey alighted. One of them forcibly removed the ignition key of themotorcycle while one of them drew a cutlass from his trousers onPW1 which action made him to retreat. The appellant and the othertwo accused persons rode the motorcycle away. PW1 immediatelyran to a nearby ‘Quarter Guard’ where a Policeman was detailedto follow him to the locus criminis. The motorcycle was tracedand later found in a bush covered with leaves. The policeman tookthe motorcycle to the police station and later that day one of theaccused persons, indeed, the 1st accused, was apprehended. Atthe Police Station, he mentioned the names of the other accusedpersons, including the appellant, with whom he had robbed PW1.

However, the appellant’s case, in his oral testimony at the trialwas that on 2nd June, 2004, he and his friends, that is, the 1st and3rd accused persons coming from Church, took PW1’s commercialmotorcycle from High School to Shagari village, Akure. On arrivingat their destination, the 1st accused gave PW1 a sum of N40.00 asfare for their ride, but PW1 refused to accept the money, claiming,that his charge was N60.00. The appellant and 3rd accused startedbegging PW1 to please accept the amount offered. They separatedbut PW1 later brought the police to arrest the appellant’s fatherin their house, since he was not available in the house. He laterwent to the Police station, to know why his father was arrested. Hisfather was released on bail while he was arrested.

At the close of the case of the defence, counsel to both partiesaddressed the court. In its judgment delivered on the 13th day ofJuly, 2007, the trial court found the appellant and the other co-accused persons guilty as charged for conspiracy to commit armed

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR427

robbery and armed robbery. They were convicted and sentenced todeath by hanging as prescribed by law.

Being dissatisfied with the judgment of the trial court, theappellant appealed to the court below. In the lead judgment ofthe court below, the appellant’s appeal was allowed in part. Theprosecution was held not to have proved the charge of armedrobbery against the appellant, beyond reasonable doubt. Hence, hisconviction and sentence to death was set aside and committed tolife imprisonment.

Being further dissatisfied, led to the instant appeal to this courtupon the notice of appeal filed on 17th December, 2013.

Pursuant to the rules of this court, parties filed and exchangedbriefs of argument. The appeal was later heard on 13th February,2020 upon the following processes:

Appellant’s brief of argument filed on 2nd November,2016 but deemed properly filed and served on 14th(i)November, 2018.

Respondent’s brief of argument filed on 30th July, 2018but deemed properly filed and served on 13th February,(ii)2020.

Appellant’s reply brief of argument filed on 11th February,(iii)2020.

On the 13th February, 2020 when the appeal was heard – Mr.Kazeem Gbadamosi of counsel for the appellant after identifyingboth briefs of argument he filed for the appellant, adopted and reliedon same to urge the court to allow the appeal, acquit and dischargethe appellant.

Mr. Akinyemi Olujinmi of counsel for the State, on fiat so todo, not being a Legal Officer of the State identified his brief ofargument filed on 30/7/2018 but deemed properly filed and servedon 13th February, 2020. He adopted and relied on same to urge thecourt to dismiss the appeal for lacking in merit.

In the appellant’s brief of argument, the following two issueswere distilled from the seven grounds of appeal filed.

Issues for Determination

Whether having regard to the material contradictionsin the evidence of PW1, the Court of Appeal ought tohave set aside the judgment of the trial court and allow(i)the appeal of the appellant (Grounds 1, 5 and 6).

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

428

Whether the affirmation by the Court of Appeal of thejudgment of the trial court which placed heavy relianceon exhibit P3 in convicting the appellant was wrongand amounted to breach of fair hearing. (Grounds 2, 3,(ii)4 and 7).

The learned counsel for the respondent formulated two issuesfor determination from the same respective grounds of appeal.The said issues are similar materially, although slightly differentlycouched. The two issues were argued seriatim.

On issue 1, learned appellant’s, counsel contended that thecourt below ought to have acquitted and discharged the appellantand set aside the entire decision of the trial court in view of thematerial contradictions in the evidence of the prosecution witnesses.He relied on Bassey v. The State (2012) 12 NWLR (Pt.1314) 209 at232. He contended that the statement obtained from the appellant as2nd accused was never tendered that PW2 did not give any materialevidence in proof of the prosecution’s case.

Learned counsel referred to the testimony of PW3 – Sgt. FunsoOludaiye, a Police Officer who failed to complete his testimony,as he refused to come to court again, after the trial court rejectedthe statements said to have been obtained from the three accusedpersons, as the statements were adjudged to have been madeinvoluntarily by the accused persons, including the appellant. Hesubmitted that the testimony of PW3 was therefore of no value tothe prosecution.

Learned counsel contended that the only evidence which wasbefore the court was that of PW1, as the complainant, which hesubmitted was in all material aspect contradictory. He referred tothe complainant’s first statement which was admitted as exhibit P1and the statement made by the same complainant five days afterthe first statement. He contended that in the two statements, thecomplainant contradicted himself as to the number of people hecarried, who robbed him of his motorcycle. In one statement, hestated that they were two boys but in the other statement, he referredto them as three men. Learned counsel contended that exhibit P1was made on 2nd June, 2004, the day of the occurrence of the eventcomplained about, while the other statement was made after thesuspects were arrested and detained by the police.

Learned counsel contended that the complainant himselfunder cross examination admitted that what he had told the police

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR429

was different from what he told the court as the person who broughtout the cutlass having emerged from the bush. Learned counselsubmitted that from the contradictions in the statements of PW1 -exhibits P1 and P2 and the oral testimony in court, the court belowought to have set aside the decision of the trial court and dischargedthe appellant on the ground that the viva-voce evidence of PW1 isinconsistent with his extrajudicial statement. He relied on Joshua v.Queen (1964) 1 All NLR 1 at 3; R. v. Golder (1960) 1 WLR 1169 at1172. He urged the court to disregard the evidence of PW1 and setaside the decision of the trial court and that of the court below.

Learned counsel referred to the findings of the court below onpages 214 to 217 of the record of appeal on the materiality of thecontradictions, and submitted that, where a court has found suchcontradictions that are material in respect of an offence with whichan accused was charged, the Court of Appeal ought to set aside thedecision of the trial court. He urged the court to resolve issue 1 infavour of the appellant and set aside the decision of the court belowwhich affirmed the judgment of the trial court.

In arguing this issue No.1 of the issues for determination, thelearned counsel for the respondent on whether there are materialcontradictions in the evidence of prosecution witnesses which arefundamental to the main issues and ought to be resolved in favour ofthe appellant, he contended that, it is settled law that for conflicts orcontradictions in the evidence of prosecution witnesses to be fatal,the conflict or contradictions must be substantial and fundamentalto the main issues in question before the court. He relied on: Ibe v.State (1992) 5 NWLR (Pt.244) 642 at 649; Onubogu & Anor v. TheState (1974) ALL NLR 561; Nasamu v. The State (1979) ALL NLR193 at 197-198.

Learned counsel submitted that there are no materialcontradiction or conflicts in the evidence adduced by the prosecutionwhich is fundamental to the main issue that may be resolved infavour of the appellant. He referred to an excerpt of exhibit P1 atpage 110-111 of the record of appeal and exhibit P2 at page 112of the record. He contended that in the evidence of PW1 on oathbefore the trial court on 7th March, 2006, the account of PW1 wasconsistent with exhibit P2 that he carried the three accused personson his motorcycle on the fateful day as opposed to two personsstated in exhibit P1.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

430

Learned counsel referred to the ingredients of an offence ofarmed robbery and contended that the discrepancy between PW1’sstatement in exhibits P1 and P2 that he carried two boys or 3 menon his motorcycle from Akure High School junction was never afundamental or core issue in question before the court but ratherwhether there was robbery, whether the accused were armed andwhether the three accused persons participated in the armed robberyon that day when they were at the place of the incident.

Learned counsel contended that there was no doubt from exhibitP1 that there was armed robbery and three persons participated inthe armed robbery as PW1 stated. He conceded that even thoughPW1 initially stated in his exhibit P1 that he carried two boys on hismotorcycle as opposed to three men, on the day of the incident, hecontended that the purported conflict or contradictions therein areimmaterial and inconsequential. He urged the court to resolve issueNo.1 in favour of the respondent but against the appellant.

As stated earlier, issue No.1 which was derived from grounds1, 5 and 6 of the grounds of appeal is whether having regard to thematerial contradictions in the evidence of PW1, the complainant,the court below ought to have set aside the decision of the trialcourt and allowed the appeal of the appellant.

As earlier noted, the appellant and the other two co-accusedpersons were charged with offences of conspiracy to commit armedrobbery and armed robbery. Generally, the ingredients required toestablish or prove the offence of armed robbery are:

(i)That there was a robbery,

(ii)That the robbery was armed robbery; and

That the accused was the armed robber or one of the(iii)robbers.

See; Alabi v. State (1993) 7 NWLR (Pt.307) 511; Goldie Dibie v.State (2007) 9 NWLR (Pt. 1038) 30.

The proof the prosecution is required to establish in a chargeof armed robbery is proof beyond reasonable doubt.

In this case before the trial court, the prosecution, in order toprove the charge against the appellant and his co-accused calledthree witnesses, including the complainant, who was the PW1. Theother two prosecution witnesses were policemen who were said tohave investigated the complaint.

On record, the complainant who testified as PW1 was said tohave made statements to the police two different times. First on the

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR431

2nd day of June, 2004 when the incident took place and the secondwas on the 7th day of June, 2004. The two statements were admittedand marked exhibits P1 and P2 respectively. The first was at IjapoPolice State while the other was at the Special Anti Robbery Section(SARS).

PW2 – Ajeigbe Rotimi was a Police Constable No.362371. Hetestified that he obtained statements from the appellant and othertwo co-accused under caution and after reading the statements toeach of the accused got them to sign their respective statements, hetransferred the case to the Anti Robbery Squad. The statements ofthe three accused persons were said to be with the SARS when thewitness was asked in the court about the statements he obtained.

PW3 – Sgt Funso Oludaiye was attached to the State CID- Special Anti Robbery Squad. He claimed to have obtained thestatements of the complainant and the three accused persons on7th June, 2004. He testified that, after the accused persons signedtheir respective statements, he countersigned and they were takenbefore a Senior Police Officer to endorse the statements. Upon thesearch of the houses of the accused persons nothing incriminatingwas found.

It is noteworthy that when the witness attempted to tender thestatements said to have been obtained from the accused persons,and there was objection, the trial court ordered a trial-within-trial.The ruling of the trial court was in favour of the accused personsas their statements were not allowed to be tendered. The trial courtheld that the said statements were obtained involuntarily.

The trial court ruled, inter alia, on the trial within trial asfollows:

“The trial-within-trial was the opportunity theprosecution had to bring all the statements before thecourt, unfortunately it was bungled. I hereby hold thatthe prosecution failed to prove that the confessionalstatements were voluntarily made by the accusedpersons.”

It is on record that upon the rejection of the statementsobtained from the accused persons, PW3 who had tendered themrefused to attend court subsequently. Hence he was not availablefor any cross-examination on the evidence he had given underexamination-in-chief for the prosecution. In other words, he failedto conclude his testimony.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

432

It is interesting to note that on, this issue of contradictions inthe prosecution’s evidence, the court below had found on page 214of the record as follows:

“On whether there are material contradictions anddoubts in the prosecution’s case which can be ofassistance to the accused person (appellant). It ismy view that there were material contradictions anddoubts in the prosecution’s evidence before the trialcourt which can be of assistance to the appellant inthis case.”

Learned Justice in the said lead judgment of the court belowwent further on page 215 of the record of appeal as follows:

“Thus, exhibit P1 which is PW1’s statement made atIjapo Police Station to the effect that he gave a ride totwo instead of three boys and one other boy emergedfrom a bush armed with a cutlass aside from one ofthe accused persons including the appellant, whothreatened him with a cutlass should be regarded ascontradictory to his oral evidence before the trial courtand his statement before the Police and I hereby sohold.”

On page 11 of the record of appeal where the statement of thecomplainant PW1 made to the Police is reproduced, he had statedas follows:

“That on 02/06/2004 at about 6.00am as I was comingwith my motorcycle Reg. No. QC494JTA and ongetting to Akure High School I came across two boyswho stopped me that they are (sic) going to Olufoamarea and I carried both of them and on getting toOlufoam where they claim (sic) they are (sic) goingas I was about collecting my money from them oneother boy came out from the bush with a cutlass whileone out of the two I brought there equally brought outa cutlass from his trouser slapped me and forcefullyceased my ignition key. After sometime they snatchedmy motorcycle from me as they were going away withmy motorcycle I have (sic) to run to Mobile PoliceQuarter Guard to lodge the report and immediatelytwo Mobile Police Officers were detailed to follow meto trace the boys and the motorcycle and fortunately

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR433

the motorcycle was discovered in the bush where theykept the motorcycle and the Mobile Policemen have(sic) to carry the Motorcycle to their Quarter Guardbefore finally carrying it down to Ijapo Police Station.”

As clearly shown above, the court below had found that in thestatement of PW1 – the complainant made to the Police on the daythe incident happened, the complainant contradicted himself withhis testimony during the trial when he stated that he carried onlytwo boys and that the third boy only emerged from the bush witha cutlass as the other two boys he had carried alighted from hismotorcycle.

It is noteworthy that under cross examination PW1 – thecomplainant had admitted that it was after the person who took theright side switched off the ignition of his motorcycle and he wasdemanding for his money that the cutlass was brought out from hiscloth, but that he told the police earlier that the person who broughtout the cutlass emerged from the bush.

Generally, and it is trite law, that where there are contradictionsin the evidence of prosecution witnesses on a material fact,such contradictions ought to be explained by the prosecution byevidence. When there is no such explanation by the prosecution thecourt is not expected to and should not speculate on an imaginedexplanation for such contradictions. See; Arehia v. The State (1982)4 SC 78.

In Gabriel Shofolahan Joshua v. The Queen (1964) 1 All NLR1 at 3 & 4; (1964) LPELR – 25308 Per Ademola, JSC (as he thenwas, later the CJN), this court had opined as follows:

“In the case of a witness who had made previousstatements inconsistent with the evidence given at thetrial, the court has been slow to act on the evidence ofsuch witness. In the case of Regina v. Golder (1960)1 WLR 1169 at page 1172, Lord Parker, CJ deliveringthe judgment of the court, on this point said as follows:

“In the judgment of this court, when a witnessis shown to have made previous statementsinconsistent with the evidence given by thatwitness at the trial, the Jury should not merelybe directed that the evidence given to the trialshould be regarded as unreliable, they should also

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

434

be directed that the previous statements, whethersworn or unsworn do not constitute evidenceupon which they can act.”

From the statement made to the Police at the earliest opportunityfew hours after the alleged attack on PW1, he had told the Policethat one out of the two he had brought on his motorcycle broughtout a cutlass from his body which was not feasible on the carrierof the cutlass as they mounted or embarked on his motorcycle. Hehowever said in his oral testimony that another person came out ofthe bush with a cutlass, as the third person. It is noteworthy that theprosecution had stated that nothing incriminating was found on theappellant or in his house and the object of the alleged robbery – themotor cycle was not found on or in possession of any of the accusedpersons.

It is generally settled law that where there are materialcontradictions and inconsistencies in the evidence of the prosecution,the accused is entitled to be given the benefit of the doubt so createdas a result of the inconsistencies. See; Onubogu v. The State (1974)9 SC 1; Nwabueze v. The State (1988) 4 NWLR (Pt. 86) 16; HarunaAlhaji Galadima v. The State (2017) LPELR – 43469 (SC); (2018)13 NWLR (Pt. 1636) 357.

As earlier noted, the court below had found that there werematerial contradictions and inconsistencies on the evidence bythe prosecution which would be resolved in favour of the accusedperson, which led the court below in its leading judgment to havefound the appellant not liable for armed robbery as charged but forrobbery and reduced the sentence from death to life imprisonment.

Ordinarily, if there are material contradictions in the evidenceof the prosecution, that as to the charge, as stated earlier doubt willbe created and benefit of the doubt must be given to the accusedperson, in which case, he is entitled to be discharged, See; PatrickIkemson & Anor v. The State (1989) LPELR – 1473 (SC); (1989) 3NWLR (Pt. 110) 455.

In this instant, having found that there were materialcontradictions in the evidence of the prosecution, in particular thatof PW1, the court below ought to have resolved the doubt in favourof the appellant leading to the upturn of the judgment of the trialcourt.

In the circumstance, issue No.1 is resolved in favour of theappellant.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR435

Issue No.2 is whether the affirmation by the Court of Appealof the judgment of the trial court which placed heavy reliance onexhibit P3 in convicting the appellant was wrong and amounted tobreach of fair hearing.

On this issue, learned counsel of the appellant contended thatboth the trial court and the Court of Appeal placed heavy relianceon exhibit P3 in convicting the appellant. It is on record that whilePW3 – Sgt. Funso Oludaiye was testifying, he sought to tender thestatement of the appellant and other two co-accused persons whichstatements were alleged to be confessional. Upon objection by theaccused persons, the trial court ordered a trial-within-trial and inthe ruling, the trial court found the alleged confessional statementsinadmissible and were accordingly rejected, for not being proved tohave been made voluntarily.

Learned counsel contended further that despite the clearfindings of the trial court, of the involuntariness of any confessionalstatement from the accused persons, the trial court went ahead torely heavily on exhibit P3 which was tendered during the trial-within-trial to convict the appellant and his co-accused person.Learned counsel submitted that the reliance placed on exhibit P3by the Court of Appeal is wrong in view of the fact that exhibitP3 was tendered during trial-within-trial and the witness whowas testifying that led to trial-within-trial did not complete histestimony as he was not made available for cross examination. Hecontended that the trial court ought not to have made use of theoral and documentary evidence of PW3. In other words relianceought not to have been given to exhibit P3 tendered by PW3 at all,in considering the culpability or otherwise of either the appellantor any of the other co-accused persons. He relied on Eseu v. ThePeople of Lagos State (2014) 2 NWLR (Pt.1390) 109; Alarape v.The State (2001) 5 NWLR (Pt. 705) 79 at 88; Yusufu v. Obasanjo(2005) 18 NWLR (Pt. 956) 96 at 216-217.

Learned counsel contended that the said exhibit P3 is thestatement of Akpodee Simon – the 1st accused but not that of theappellant. He submitted that it is trite law that the statement ofan accused person cannot be used against another accused personunless such an accused person adopts the statement as his own.He relied on Emeka v. The State (2001) 14 NWLR (Pt.734) 666at 679. He submitted that, that said exhibit P3 was never adoptedby the appellant as his statement, the trial court and court below

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

436

were therefore wrong to have relied on the said exhibit P3. Learnedcounsel further submitted that in view of the contradictions in theextra judicial statements of the PW1 as contained in exhibits P1and P2 and his oral evidence viva-voce before the court, the totalityof the evidence of PW1 became unreliable. He relied on Joshua v.Queen (1964) 1 All NLR 1 at 3 & 4.

He urged the court to resolve, the issue in favour of theappellant, set aside the decision of the lower court which affirmedthe findings of the trial court, discharge and acquit the appellant byallowing the appeal.

In arguing issue No.2 on the reliance placed on exhibit P3 whichwas the statement made by the 1st accused person, learned counselfor the respondent conceded that even though the statement of the1st accused before the trial court was admitted without objectionduring the trial within trial conducted pursuant to the objection tothe admissibility of the said statement, the trial court rejected thesaid statement in its ruling on the trial-within-trial holding that thestatements of the three accused persons were not proved to havebeen made voluntarily.

Learned counsel further admitted that at the resumption of themain trial, the PW3 – Sgt Funso Odulaiye, was no long availableto continue his examination-in-chief, which was unavoidablyinterrupted by the trial-within-trial ordered by the trial court. Theprosecution consequently closed its case and the defence openedwith the 1st accused who testified as DW1.

Learned counsel contended that during cross examination ofDW1 by the prosecution, exhibit P3, which was already beforethe court from the trial within trial was again shown to him andquestions were put to him concerning exhibit P3 and in his answershe denied categorically that he ever made the statement in exhibitP3 is not his own. He said he never volunteered a statement atSARS but he made one at Ijapo Police Station.

Learned counsel however contended that none of the defencecounsel objected to the use of exhibit P3 by the prosecution counselin the main trial during cross examination of the 1st accused person.He relied on Igbinovia v. State (1981) 2 SC 5 to submit that it is nothow a piece of evidence was obtained that the court will considerbut its relevance to the matter. He also relied on Gbadamosi v. State(1992) 9 NWLR (Pt. 266) 465 at 480 to the effect that an irregularprocedure will not vitiate a whole trial of a court.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR437

Learned counsel contended that assuming without concedingthat exhibit P3 was wrongfully admitted evidence, section 227 ofthe then Evidence Act now section 251(i) of the 2011 Evidence Act,as amended, provides that the wrongful admission of evidence shallnot of itself be a ground for the reversal of any decisions in anycase where it shall appear to the court on appeal that the evidenceso admitted cannot reasonably be held to have affected the decisionand that such decision would have been the same if such evidencehad not been admitted.

Learned counsel contended further that the trial court and thelower court never placed heavy reliance on exhibit P3 as contendedby the appellant. He submitted that without exhibit P3, the accusedperson would still have been convicted as all the ingredients of theoffences were clearly established beyond reasonable doubt by thedirect and uncontroverted evidence of PW1, exhibits P1 and P2.

Learned counsel further submitted that even though exhibitP3 was only corroborative of the oral testimony of PW1 along withexhibits P1 and P2 armed robbery is not an offence which requirescorroborative evidence. He relied on Ugwumba v. The State (1993)5 NWLR (Pt. 296) 660 at 674; Akalezi v. State (1993) 2 NWLR (Pt.273) 1 at 13.

Learned counsel contended that while corroborative evidenceis not required in armed robbery cases, that law is settled that wheremore than one person are accused of joint commission of a crime,it is enough to prove that they all participated in the crime. Hesubmitted that what each did in furtherance of the commission ofthe crime is immaterial. And the mere fact of the common intentionmanifesting in the execution of the common object is enoughto render each of the accused persons in the group guilty of theoffence. He relied on Nwankwoala v. The State (2006) 14 NWLR(Pt.1000) 663 at 682.

Learned counsel referred to the findings of the trial court andcontended that it is crystal clear that the conviction of the appellantwas not squarely based on exhibit P3 as canvassed by the appellant.He contended that without exhibit P3, the appellant would still havebeen convicted of armed robbery as found by the trial court andaffirmed by the majority opinion of the Court of Appeal. He urgedthe court to resolve issue 2 in favour of the respondent.

In his reply brief to the respondent’s brief of argument,learned counsel for the appellant submitted that on issue No.2, the

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

438

respondent did not cross appeal against the judgment of the Courtof Appeal which is the subject of the instant appeal. He contendedthat, the court below in its lead judgment had found that there arematerial contradictions in the judgment of the trial court and therehad been no appeal against the said findings by the respondent. Hereferred to the submissions of the respondent on paragraphs 5.04.5.05. 5.06. 5.07, 5.08 and 5.09 of the respondent’s brief of argumentand submitted that, they are misconceived, there being no crossappeal by the respondent on the findings that there are materialcontradictions in the evidence of the prosecution’s witnesses. Herelied on Anyanwu v. Ogunewe & Ors (2014) LPELR, 22184 SCat 47; (2014) 8 NWLR (Pt. 1410) 437; Ogunyade v. Oshunkeye(2007) All FWLR (Pt. 389) 1175 at 1206-1207; (2007) 15 NWLR(Pt. 1057) 218; Akibu v. Oduntan (1992) 2 NWLR (Pt. 222) 210;Unity Bank (Nig.) Plc v. Bouari (2008) 7 NWLR (Pt.1086) 372at 400. He submitted that the respondent who did not file a crossappeal cannot make any submissions or canvass any argumentagainst the findings of the Court of Appeal that there are materialcontradictions in the evidence of the prosecution witnesses.

Learned counsel urged the court to sustain the findings of theCourt of Appeal on the material contradictions as appellate courtdoes not interfere with findings not appealed against, relying onOlukoya & Ors v. Fatulude (1990) LPELR – 2623 (SC; Idiok v.State (2008) LPELR – 1423 (SC); (2008) 13 NWLR (Pt. 1104) 225.He urged the court to allow the appeal.

On issue No.2, learned counsel referred to the submissionsof the respondent in paragraph 6.08, 6.09 and 6.10 of the brief ofargument, and submitted that it is trite law that unless a co-accusedperson adopts the statement of another co-accused person, such astatement cannot be used against a co-accused except the maker.

He referred to exhibit P3 which is the statement of SimonAkpodee – 1st accused person at the trial court. He contended thatthere is nowhere on record where the appellant who was the 2ndaccused person adopted the statement as his own throughout thetrial. The appellant was also never shown or cross-examined withexhibit P3. He submitted that it was wrong to both trial court andthe court below to have made use of and relied on the said statementin convicting and affirming the conviction of the appellant.

Contrary to the submissions of the respondent paragraphs 6.11to 6.13 of the brief of argument, he contended that the appellant’s

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR439

complaint is not about wrongful admission of statement but ratherthat the evidence ought not to have been used at all against theappellant on the ground that PW3 whose evidence was being takenwas not available for cross examination and that the said statementof a co-accused was never adopted by the appellant not being hisown confessional statement.

Learned counsel referred to the findings of the court below onpage 207 of the record and contended that the court below wronglyrelied on and made use of exhibit P3 believing that it was made bythe appellant, whereas the exhibit is not the appellant’s statementbut that of a co-accused person – the 1st accused before the trialcourt.

Learned counsel further referred to the findings of thecourt below on PW1 at pages 214 lines 18-21 of the record andcontended that the said findings of the Court of Appeal nullified thefindings of the trial court on PW1 and since there was no appealby the respondent on the said findings of the court below it wasappropriate for the court to have discharged the appellant for thealleged offence of armed robbery, considering that the evidence ofthe prosecution witnesses were held to be materially contradicting,moreso, that the appellant did not adopt exhibit P3.

The 2nd issue for determination of the appeal which was saidto have been distilled from ground 2, 3, 4 and 7 as earlier stated canbe properly and better couched in the following words:

“Whether the prosecution proved the offence chargedagainst the appellant beyond reasonable doubt byrelying on exhibit P3 to enable the Court of Appealarrive at its judgment against the appellant.”

As earlier stated, the appellant was only one of the threeaccused persons that stood trial for the two-count charge. Indeed,he was the 2nd accused person. He testified before the trial court asDW2. There is nothing on record that he made any confessionalstatement to the Police which was admitted. But exhibit P3 is saidto be the confessional statement of the 1st accused person which hewas said to have made at the Ijapo Police Station before the casewas transferred to the State CID, Special Anti Robbery Squad. Thesaid statement was also said to have been tendered through the 1staccused under cross examination when he testified as DW1.

It is trite law that the statement of an accused person made to

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

440

the Police is only evidence against him but not evidence againsthis co-accused person. See; Anaba Ohuka & Ors v. The State (No.2) (1988) LPELR – 2362 (SC); (1988) 4 NWLR (Pt. 86) 36; DareJimoh v. The State (2014) 10 NWLR (Pt.1414) 105 at 139.

In Dalami Ozaki & Anor v. The State (1990) 1 NWLR (Pt.124)92, this court, per Obaseki, JSC had inter alia, opined as follows:

“It is an error in law to convict an accused on thestatement of another accused to the Police. It is atravesty of justice and gross violation of all knownrules of evidence …

It is settled law by statute and judicial decisions that theconfessional statement of a co-accused is no evidenceagainst an accused person who has not adopted thestatement”

See also; Subuowan v. Commissioner of Police (1961) NNLR 257.

It is on record that the trial court in its judgment relied onexhibit P3 which was the alleged confessional statement of the1st accused person. Indeed, on page 113, of the record, the trialJudge stated that the exhibit corroborates the evidence of PW1- thecomplainant.

There is no doubt that the trial Judge strongly relied on thestatements of PW1 – the complainant in exhibits P1 and P2 and thestatement of 1st accused in exhibit P3 to convict the appellant whowas the 2nd accused person who did not adopt the said statement ofPW1 as 1st accused.

It is note worthy that even though it was clear that exhibitP3 was the alleged confessional statement of a co-accused personwho was the 1st accused at the trial court, the court below in thejudgment on the appeal of the instant appellant mistook the saidexhibit P3 for the statement of appellant. On page 207 of the recordin lines 9-12 of the lead judgment of the court states thus:

“Exhibit P3 which is the voluntary confessionalstatement of the accused in this case on appeal ispartly supported by the statements of the PW1 andhaving been tendered without objection and admittedby the court, it thus became part of the prosecution’sevidence.”

The court below still in its judgment on page 209 of the recordin the same exhibit P3 continued as follows: Thus

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR441

“Furthermore, it is my opinion that, exhibit P3 isan exposition of the participation of all the accusedpersons including the appellant in the commission ofthis crime as sufficiently supported by exhibits P1, P2and the oral evidence of PW1.”

In Iliyasu Suberu v. The State (2010) LPELR -3120 (SC);(2010) 8 NWLR (Pt. 1197) 586 this court, per Fabiyi, JSC opinedas follows:

“There is a gulf of difference between an extra judicialstatement made, by a co-accused which is governedby section 27(3) of the Evidence Act, and evidencegiven by a co-accused on oath which is governed bysection 17(2) of the Evidence Act. An extra judicialstatement by a co-accused remains a statement andnot his evidence. It is binding on the maker only. See;Ogiri & Anor v. The State (1978) NMLR 2 at 5”

In Akanbi Enitan & Ors v. The State (1986) LPELR – 1146(SC); (1986) 3 NWLR (Pt. 30) 604 this court, per Oputa JSC hadthis to say:

“The law here is quite clear. A statement made to thePolice during the investigation of a case may amountto an admission. Such a statement is evidence againstthe maker on that score. But such a statement isdefinitely not evidence against a co-accused: In fact itis inadmissible against a co-accused.”

See also; R. v. Akinpelu Ajani & Ors (1936) 3 WACA 3 at 4.

However, if a co-accused during trial goes into the witnessbox and repeats on oath what he had told the Police in his statementthen that evidence becomes evidence for all purposes includingbeing evidence against a co-accused. But even then it has beenheld that such evidence should be and is always suspiciouslyregarded. See; Enitan & Ors v. The State (supra); Hamzat Badmusv. Commissioner of Police (1948) 12 WACA 3611; R v. Rufai Alli& Mumuni Bello (1949) 12 WACA 432; Rex v. Augustine Ume & 2Ors re: Vincent Egejuru (1942) 8 WACA 123.

There is therefore no iota of doubt that the trial court wasgrossly in error in admitting and relying on exhibit P3 – the statementof a co-accused made to the Police to convict and sentence theappellant. In the same vein, the court below was equally wrong inrelying on the said statement of a co-accused – 1st accused beforethe trial court to affirm the conviction of the appellant, who neither

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

442

made any confessional statement nor adopted as his own exhibitP3.

It is worthy of note that the court below clearly on record onpage 218 paragraph 2 had found that the prosecution failed to provethe guilt of the appellant beyond reasonable doubt as doubts werecast on their case toward the close of its case.

It is trite law without any doubt that in a criminal trial ofthis nature, the prosecution is expected to establish the charge ofarmed robbery on proof beyond reasonable doubt. What then isproof beyond reasonable doubt It means the establishment of allthe ingredients of the offence charged in tandem with the dictatesof section 138 of the Evidence Act and section 36(5) of the 1999Constitution (as amended). See; Tajudeen Alabi v. The State (1993)LPELR 397; (1993) 7 NWLR (Pt. 307) 511.

In Bakare v. The State (1987) 3 SC 1 at 33; (1987) 1 NWLR(Pt.52) 579 at ….. , this court per Oputa, J.S.C. opined as follows:-

“Also it has to be noted that there is no burden on theprosecution to prove its case beyond all doubt. No.The burden is to prove its case beyond reasonabledoubt with emphasis on reasonable doubt. Notall doubts are reasonable. Reasonable doubt willautomatically exchole unreasonable doubt, fancifuldoubt and speculative doubt – a doubt borne out by thecircumstance of the case”

See also, the cases of Okagbue v. C.O.P. (1965) NMLR 220; Umev. The State (1973) 2 SC 9 at 12-13; Obue v. The State (1976) 2 SC141-149; Lori v. The State (1980) 8-11 SC 81 at 99; Ayuba-Khan v.The State (1991) 2 NWLR (Pt.172) 127 at 144.

It is already settled law that in our criminal jurisprudence, inorder for the prosecution to succeed in the trial of an accused personcharged with the commission of crime, it is its duty to establish thecase beyond reasonable doubt. However, as earlier stated, it mustbe noted that that proof beyond reasonable doubt does not meanproof beyond all shadow of doubt. See; The State v. Gwangwan(2015) 13 NWLR (Pt. 1477) 600.

In the State v. San Leader O. I. Onyeukwu (2004) LPELR – 3116SC; (2004) 13 NWLR (Pt. 893) 340, this court per Pat-Acholonu,J.S.C. on what is meant by proof beyond reasonable doubt statedthus:

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

[2021]16NWLR443

“It must be stated and emphasized that proof beyond allreasonable doubt does not mean or import or connotebeyond any degree of certainty. The term strictlymeans that within the bounds of evidence’ adducedand staring, the court in the face, no tribunal of justiceworth its salt would convict on it having regard to thenature of the evidence led and the law marchalled outin the case. It can be said that evidence in a criminaltrial that is susceptible to doubt cannot be said to haveattained the height or standard of proof that can be saidto be beyond all reasonable doubt. Regardless of whatone might think in a given state of affairs in a givencase, neither suspicion nor speculation or intuition canbe a substitute for a proof beyond all reasonable doubt.It is a proof that precludes all reasonable inference orassumption except that which it seeks to support andmust have the clarity of proof that is readily consistentwith the guilt of the person.”

As earlier noted, the court below had found that as a result ofthe doubts observed in the case presented by the prosecution thecourt was not convinced that the guilt of the appellant had beenproved beyond reasonable doubt. In my view, the best thing thecourt below ought to have done in the circumstance was to resolvethe lingering doubts in favour of the appellant and allowed theappeal.

Furthermore, even though the court below rightly noted thatthe prosecution unsuccessfully failed to proof the charge of armedrobbery against the appellant because of material contradictions inthe evidence of PW1 – the complainant and the court came alsorightly to the conclusion that it was not safe to uphold the appellant’sconviction for the offence of armed robbery, yet the court belowproceeded to convict for a lesser offence of robbery.

However, having found that the trial court and the court belowwrongly relied on the alleged confessional statement of a co-accusedperson – the 1st accused – to convict the appellant who did not makeany confessional statement and did not adopt the said statementof the co-accused, the conviction and sentence of the appellantwas vitiated by that vice rendering it liable to being quashed. Andhaving found that the prosecution failed to prove the charge againstthe appellant beyond reasonable doubt, the, second issue is resolvedagainst the respondent but in favour of the appellant.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Ariwoola,J.S.C.)Sundayv.State(Ariwoola,J.S.C.)

444

In the final analysis, and without any further ado, this appealsucceeds and it is accordingly allowed. In the circumstance, theconviction and sentence of the appellant are overruled. Thejudgment of the trial court and that of the court below are set aside.The appellant is acquitted and discharged.

Appeal allowed.

PETER-ODILI, J.S.C.: I agree with the judgment just deliveredby my learned brother, Olukayode Ariwoola J.S.C. and to registerthe support I have in the reasonings from which the decision cameabout, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal,Akure Division or Lower court or Court below, Coram: SotonyeDenton-West, Mojeed A. Owoade, C. Ifeoma Jombo- Ofo JJ.CAdelivered on the 5th day of December, 2013 which allowed in partthe appeal of the appellant by reducing the death sentence metedout by the trial High Court to life imprisonment.

The detailed facts are properly set out in the leading judgmentand I will not repeat them unless circumstances warrant a referenceto any part thereof.

The hearing of this appeal took place on the 13th day ofFebruary, 2020 at which date, learned counsel for the appellant,Kazeem A. Gbadamosi Esq. adopted the brief of argument of theappellant filed on the 11th February 2020 and deemed filed on13/2/20. The appellant raised two issues for determination whichare thus:-

Whether having regard to the material contradictionsin the evidence of PW1, the Court of Appeal ought tohave set aside the judgment of the trial court and allowthe appeal of the appellant. (Covers Grounds 1, 5 and(i)6).

Whether the affirmation by the Court of Appeal ofthe judgment of the trial court which placed heavyreliance on exhibit P3 in convicting the appellant waswrong and amounted to breach of fair hearing. (CoversGrounds 2, 3, 4 and 7).

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Peter-Odili,J.S.C.)

[2021]16NWLR445

Learned counsel for the respondent, Akinyemi Olujinmi Esq.,with the fiat of the Attorney General, adopted the brief of argumentfiled on 30/7/18 and deemed filed on 13/2/20. He raised two issuesfor determination, viz:-

1.Whether there are material contradictions in the evidenceof prosecution witnesses which are fundamental to themain issues and ought to be resolved in favour of theappellant. (Appellant’s grounds 1, 5 and 6).

2.Whether exhibit P3 statement of 1st accused persontendered and admitted in evidence without objectionin a trial-with in-trial can be subsequently used andretired on in the main trial and judgment of the court.(Appellant’s grounds 2, 3, 4 and 7).

For ease of reference, I shall make use of the issues as craftedby the appellant which are thus:-

1.Whether having regard to the material contradictionsin the evidence of PW1, the Court of Appeal oughtto have set aside the judgment of the’ trial court andallow the appeal of the appellant.

2.Whether the affirmation by the Court of Appeal of thejudgment of the trial court which placed heavy relianceon exhibit P3 in convicting the appellant was wrongand amounted to breach of fair hearing.

Learned counsel for the appellant canvassing the positionof the appellant submitted that the evidence of the prosecutionwitness was full of material contradiction. That PW2 did notgive any material evidence in proof of the prosecution’s case andthe statements of the 2nd accused now appellant taken was nevertendered and admitted. That PW3, the Police Officer failed tocomplete his evidence as he refused to come to court after the trialcourt rejected the statements of all the accused persons as beinginvoluntary.

It was further submitted for the appellant that PW1’s evidencewas contradictory in material aspects apart from the evidence beinginconsistent with the extra judicial statements exhibits P1 and P2.He cited Joshua v. Queen (1964) 1 All NLR 1 at 3 & 4.

Learned counsel for the appellant contended that the trialcourt rejected the extra judicial statement of the appellant whichthat court found was involuntarily made in the course of the trialwithin trial but curiously relied on the same statement to convict

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Peter-Odili,J.S.C.)

446

the appellant which error the Court below fell into hence the needfor the interference of the Apex Court to rectify the anomaly. Hecited Esen v. The People of Lagos State (2014) 2 NWLR (Pt.1390)109; Alarape v. The State (2001) 5 NWLR (Pt. 705) 79 at88; Yusufu v. Obasanjo (2005) 18 NWLR (Pt.956) 96 at 216- 217; Emeka v. State (2001) 14 NWLR (Pt. 734) 666 at 679.

For the respondent, the learned D.P.P. submitted that thecontradictions alluded to by the appellant are not material and sowould not have a fatal effect on the case of the prosecution.

He cited Archibong v. State (2006) 14 NWLR (Pt.1000) 349 at 376;Ibe v. State (1992) 5 NWLR (Pt. 244) 642.

That exhibit P3, the rejected statement which was laterused was only corroborative of the evidence of PW2 and so theprosecution’s case remained intact. He cited Ugwumba v The State(1993) 5 NWLR (Pt. 296) 660 at 674; Akalezi v. State (1993) 3NWLR (Pt. 273) 1 at 13.

In reply on points of law, learned counsel for the appellantin line with the reply brief filed on 11/2/20 and deemed filed on13/2/20 which he earlier adopted submitted that respondent didnot cross appeal against the finding and decision of the Court ofAppeal on the material contradictions in the evidence adduced bythe prosecution/respondent and so respondent cannot raise issuesin that regard here and now. He cited Anyanwu v. Ogunewe &Ors. (2014) LPELR- 22184 (SC); (2014) 8 NWLR (Pt. 1410) 437;Ogunyade v. Oshunkeye (2007) All FWLR (Pt. 389) 1175 at 1206 -1207; (2007) 15 NWLR (Pt. 1057) 218; Onibudo & Ors. v Akibu &Ors. (1992) 2 NWLR (Pt. 243) 535; (2007) 15 NWLR (Pt. 1057)218; Unity Bank Nig. Plc v. Bouari 2 NWLR (Pt. 222) 210; (2008)7 NWLR (Pt. 1086) 372 at 400 e.t.c.

Resolution of Issues:

The matter under discourse is whether or not the appellantcommitted the offence of armed robbery or stated differentlywhether the offence of armed robbery as charged at the court oftrial was established. To carry out such a duty, the prosecution mustprove the following:

(1)That there was robbery;.

(2)That the accused was armed;

(3)That the accused participated in the robbery.

While the appellant posits that the discrepancies in theevidence proffered by the prosecution witnesses were riddledwith contradictions the respondent countered forcefully that

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Peter-Odili,J.S.C.)

[2021]16NWLR447

the discrepancies referred to were so minor as not to affect thesubstantiality of the matter and so cannot vitiate the conviction andsentence to death of the trial court which Court of Appeal affirmingthe conviction of armed robbery committed the death sentencepassed by the trial court to life imprisonment.

In substance, what is before this court are concurrent findingsof fact of the two lower courts, the charge in the nature of sentencenotwithstanding.

This appeal has raised some dust which are quite interestingas well as curious. The respondent has brought about the issue ofcontradictions material in nature in the evidence of the prosecutionwitnesses at the trial Court. However, there was no appeal atthe Court of Appeal regarding the question of contradictionsin evidence which were dismissed as not material and so in theabsence of a cross appeal in that regard, the issue cannot be hereinraised without leave of court having been obtained, irrespective ofthe mention of such discrepancies by the Court below. My learnedbrother K.M.O. Kekere-Ekun J.S.C. in Anyanwu v Ogunewe &Ors. (2014) LPELR – 22184 (SC) at 47; (2004) 8 NWLR (Pt.1410)437; may have antipated the current scenario when he stated thus:-

“As rightly observed by learned counsel for the 2ndrespondent, there is no appeal against these concurringfindings of facts. It is a settled principle of law thata decision on any point of law or fact not appealedagainst is deemed to have been conceded by the partyagainst whom it was decided and it remains valid andbinding on all parties.”

See Ogunyade v. Oshunkeye (2007) AFWLR (Pt. 389) 1175at 1206-1207 A-B; (2007) 15 NWLR (Pt. 1057) 218; Akibu v.Oduntan (1992) 2 NWLR (Pt. 222) 210 G-E; Unity Bank Nig. Pic.v. Bouari (2008) 7 NWLR (Pt.1086), Pg.372 at 400. B-C.

I agree with learned counsel for the appellant that followingfrom the above, the respondent who has not filed a cross appealcannot make any submission; canvass any argument against thefindings of the Court of Appeal that there are material contradictionsin the evidence of the prosecution witnesses.

Therefore those findings of fact by the Court of Appeal notappealed against cannot be interfered with by this court. SeeOlukoga & Ors. v. Fatunde (1990) LPELR – 2623 (SC) at page 8;

(1996) 7 NWLR (Pt. 462) 516; Idiok v. State (2008) LPELR – 1423(SC) 112 (2008) 13 NWLR (Pt. 1104) 225 per Ogbuagu J.S.C.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Peter-Odili,J.S.C.)

448

In respect to the matter concerning the statement of the co-accused and its effect on the appellant, it has to be reiterated thatunless a co-accused person adopts the statement of the co-accusedperson, such a statement cannot be used against a co-accused exceptthe maker. Therein comes the exhibit P3 which is the statementof Simon Akpodee (1st accused person) and throughout the recordnowhere did the appellant who was 2nd accused person adopt thestatement of the 1st accused as his own throughout the trial. Also,the appellant was not shown or cross-examined with the exhibit P3.It follows that there is no justification for either of the two courtsbelow to have made use of and relied on the said statement in theprocess that led to the conviction of the appellant. That there wasno objection when that exhibit P3 was tendered as the voluntaryconfessional statement of the co-accused did not change theprinciple of the law on the use when the appellant did not adopt itand it was even worsened by the fact that PW3 who tendered it wasnot cross-examined. I place reliance on the case of Emeka v. State(2001) 14 NWLR (Pt. 734) 666.

For a fuller understanding of what transpired at the court oftrial and court below, the lower court had held in respect to theevidence of PW1 which is seen at page 219 of the record as follows:-

“Yes the prosecution tried to lead evidence to proveeach count of the charge and they were not so successfulas there were contradictions in the evidence of PW1 (thecomplainant) because of this contradictions, it would not besave to uphold the offence of armed robbery as charged.”

The findings of the Court of Appeal on PW1 therefore nullifiedthe findings of the trial court on PW1. There is no appeal on the saidfindings.

Indeed, this is a classic case for the exception on concurrentfindings of fact of two courts below for which the disturbance of thiscourt is called for. That there was perversity is a fact not in disputein the light of the records where even the contributory judgmentsof other members of the panel went off tangent and such a positionhad been settled by this court in the case of Idise v. Williams Int’lLtd. (1995) 1 NWLR (Pt. 370) 142, per Abubakar Bashir WaliJ.S.C. stated thus:-

“As for issues 3, 4 and 5, these were based on theconcurring judgment of Uche Omo J.C.A. (as he then was)which is not the lead judgment, whatever Uche Omo J.C.A.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Okoro,J.S.C.)

[2021]16NWLR449

said in his concurring judgment, which differs from thelead judgment, with which he agreed, can only be obiterdicta, and therefore, it will be a mere academic exercise toconsider them.”

Therefore the concurring judgment of Owoade J.C.A. andJombo Ofor J.C.A. which differs from the lead judgment are obiterdicta.

The resultant effect of what is on ground is that this court hasto interfere with the concurrent findings of fact of the two courtsbelow so that the miscarriage of justice which had resulted is notgiven the stamp of normalcy.

From the foregoing and the fuller and better reasoning in thelead judgment, this appeal has merit and is allowed by me.

Appeal allowed as I abide by the consequential orders made.

OKORO, J.S.C.: I had the privilege of reading before now thevery detailed judgment delivered by my learned brother, OlukayodeAriwoola, JSC, and I entirely agree with his reasons and conclusiontherein.

This appeal is against the judgment of the Court of Appeal,Akure Division delivered on 13th December, 2013 wherein theappeal of the appellant was allowed in part, committing the deathsentence passed on him by the trial court to life imprisonment. Acareful glean through the record before this court would reveal thatthe prosecution failed to prove the case of conspiracy to commitarmed robbery and armed robbery against this appellant. Indeedthe law is settled that where a witness who testified in chief has notmade himself available for cross-examination, the partial evidenceof that witness cannot be accorded any evidential value by the courtas relying on such inchoate evidence would amount to deprivingthe adverse party of his right to fair hearing.

It is on record that the PW3 through which the prosecutiontendered exhibit P3 at the trial court did not present himself forcross-examination. It therefore means that this appellant lackedthe opportunity to test the evidence of PW3 against the fire ofcross-examination. Both courts below were therefore wrong tohave countenanced exhibit P3 and even relied on it to convict theappellant.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Peter-Odili,J.S.C.)Sundayv.State(Okoro,J.S.C.)

450

With respect to the different versions in the evidence of thePW1, I agree that this court cannot speculate on which version tobelieve. The position of the law is that if there is inconsistency inthe case of the prosecution such as to cast doubt on the guilt ofthe accused, the accused is entitled to be given the benefit of thedoubt and he should be discharged and acquitted. See Onubogu v.The State (1979) 9 SC 1; Kalu v. The State (1988) 4 NWLR (Pt.90) 503; Abogede v. The State (1996) LPELR-45 (SC); (1996) 5NWLR (Pt. 448) 270; Arehia v. State (1982) 4 SC 76.

The prosecution failed to proffer explanation to clarify itsevidence as to whether the person who attacked the PW1 with acutlass was one of the persons he carried on his motorcycle or thefellow came from the bush. It is equally not clear whether the PW1carried two persons on his motorcycle or three. I am therefore ofthe view that the contradiction in the evidence of PW1 works infavour of the appellant.

For the above and the more comprehensive reasoning in thelead judgment, I also allow the appeal. The judgment of the courtbelow is hereby set aside and the appellant is accordingly acquittedand discharged.

AUGIE, J.S.C.: I agree entirely with my learned brother, Ariwoola,JSC, and I very readily adopt his reasoning and conclusion in thelead judgment that he has just delivered.

He dealt extensively and eloquently with the issues raised inthe appeal, and I will only highlight the point he made that thestatement of his co-accused cannot be used against the appellantbecause the law says that the statement of a co-accused to the Policeis binding on him only – Suberu v. State (2010) 8 NWLR (Pt. 1197)586. In other words, such a statement is “inadmissible against a co-accused’ – Enitan & Ors v. State (1986) 3 NWLR (Pt. 30) 604.

However, it is also well settled that where the evidenceincriminating an accused person comes from a co-accused, the courtis at liberty to rely on it, as long as the co-accused, who gave suchincriminating evidence against the accused person, was tried alongwith that accused – see Dairo v. State (2017) LPELR-43724(SC); (2018) 7 NWLR (Pt. 1619) 399 and Micheal v. State (2008) 13NWLR (Pt. 1104) 361 SC.

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Okoro,J.S.C.)Sundayv.State(Eko,J.S.C.)

[2021]16NWLR451

In this case, the said exhibit P3, which the two lower courtsrelied upon in convicting the appellant, was the statement of thefirst accused to the Police and it is clear, therefore, that the twolower courts thereby fell into serious error, which must count infavour of the appellant, who neither made a confessional statementto the Police nor adopted the said exhibit P3, as his own statement.

In other words, since his conviction is hinged upon the saidexhibit P3, which is not legal evidence before the court, as it wasmade by a co-accused, and there is no other credible evidence uponwhich the appellant’s conviction can be sustained, it goes withoutsaying that his conviction must be set aside.

It is for this and the other well-marshalled reasons in the leadjudgment that I also allow this appeal. I also set aside the judgmentof the court below, which affirmed the decision of the trial court,and in its place, I hereby enter an order acquitting and dischargingthe appellant forthwith. Appeal allowed.

EKO, J.S.C.: There was, in substance, only one prosecutionwitness of value before the trial court. That is the complainant whotestified as PW.1. The evidence of the PW.2, a Police Officer, wasneither here nor there. His testimony added no value whatsoever toeither the case of the prosecution or defence. He merely testifiedthat he obtained cautioned statements from the accused persons.He however could not produce the statements which he so averred.Without more, the PW.2 asserted that the said statements were withthe Special Anti Robbery Section (SARS) of the Nigeria Police.

The PW.3, another Police Officer, did not complete or concludehis testimony. He absconded from the proceedings after the trialcourt rejected the extra-judicial statements of the accused persons,that the prosecution sought to put in evidence through him, upontrial-within-trial. He never came back to complete his evidence-in-chief or testimony.

The PW3, the complainant, was shown to have made twomaterially inconsistent statements. That is, his sworn testimony andthe previous extra judicial statement to the Police. No explanationwas offered for the inconsistencies as to whether: two and not threeboys participated in the alleged robbery on 2nd June, 2004; andwhether the boy who drew the machete on him came suddenly from

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

NigerianWeeklyLawReports8November2021(Okoro,J.S.C.)Sundayv.State(Eko,J.S.C.)

452

the bush or was infact one of the two passengers he conveyed on hismotorcycle to the scene of the robbery. Without credible evidenceoffering explanation for the material contradiction or inconsistencythe accused person is entitled to the benefit of doubt as the courtis not entitled to pick and choose which account to believe andwhich account not to believe: Boy Muka v. The State (1976) 9 -10SC 305. With such material contradiction, the prosecution cannotbe said to have proved their case against the accused beyondreasonable doubt: Onubogu v. The State (1974) 9 SC 1; Ateji v.The State (1976) 2 SC 79.A witness, whose testimony on oath isshown to be inconsistent with his previous statements, is judiciallyregarded as an unreliable witness: R v. Golden (1960) 1 WLR 1169at 1172 cited with approval in Joshua v. The Queen (1964) 1 AllNLR 1 at 3 – 4.Clearly; the PW3, the only material witness calledby the prosecution was an unreliable witness. The two courts belowerred in relying on the PW3’s evidence to convict the appellantfor robbery and thereby denied him the judgment of acquittal anddischarge he was, in the circumstance, entitled to.

Accordingly, I completely agree with my learned brother,Olukayode Ariwoola, JSC, that there is substance in this appeal.The said judgment, including the orders made therein, is herebyendorsed and adopted by me.

Appeal allowed. The appellant is hereby acquitted anddischarged.

Appeal allowed.

NigerianWeeklyLawReports8November2021(Eko,J.S.C.)NigerianWeeklyLawReports(EkoJ.S.C.)

A

B

C

D

E

G

H

H

G

E

D

C

B

A

F

F

Leave a Reply

Your email address will not be published. Required fields are marked *