ORISA v. THE STATE (2018)

In The Supreme Court of Nigeria

On Friday, the 2nd day of March, 2018

SC.327/2015

Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI  Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE  Justice of The Supreme Court of Nigeria
AMIRU SANUSI  Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE  Justice of The Supreme Court of Nigeria


Between

UCHECHI ORISA –Appellant

AND

THE STATE- Respondent

……………………. A …………………….

PAUL ADAMU GALINJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein along with two other accused persons were arraigned before the Imo State High Court, on the 16th February, 2005 on a two counts charge of conspiracy to commit armed robbery and armed robbery under Sections 5(b) & 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990. In order to prove its case, the prosecution called two witnesses and tendered in evidence the following documents:-1. The previous evidence of PW1 when she testified as PW2 before another judge in the same case.
2. The extra-judicial statement of PW1 to the police.
3. The 1st statement of the Appellant who was the 1st accused at the trial Court
4. The 3rd statement of the Appellant to the police.
5. The statement of the brother of the Appellant.

These documents were admitted in evidence and marked Exhibits 1, 2, 3, 6, and ID 1 respectively.
The Appellant called his brother, one Augustine Orisa as defence witness (DW1) and he also testified in his defence as DW2. IDI was now tendered through DWI during cross examination and same was admitted and marked Exhibit 7. At the close of the parties respective cases, learned counsel for both parties addressed the Court. In a reserved and considered judgment which was delivered on the 14th day of March, 2013, Opara J. found the Appellant and his co-accused guilty of the offence of armed robbery and sentenced each of them to death by hanging.
The Appellant is dissatisfied with the judgment of the trial Court. Being aggrieved, he appealed to the Court of Appeal (Lower Court). In a unanimous judgment of the Lower Court, delivered on the 13th March, 2015, the Appellant’s appeal was dismissed. The instant appeal is against the decision of the Lower Court. The Appellant’s notice of appeal, at pages 248 -252 of the printed record of this appeal, dated 30th day of March, 2015 and filed on the 1st April, 2015 contains four grounds of appeal. Parties filed and exchanged briefs of argument. The Appellant’s brief of argument settled by L. M. Alozie, Esq., of counsel to the Appellant was filed on the 24th July, 2015. At page 5 paragraph 3.00 of the said brief of argument, four issues were formulated for determination of this appeal in the following order:-
1. Whether the learned Justices of the Court of Appeal were right in law when they upheld the conviction and sentence of the appellant by the trial Court while the charge of conspiracy and the armed robbery were not proved beyond reasonable doubt.
2. Whether the extra-judicial statement of the PW1 and her evidence in the previous proceedings before Hon. Justice A. U. Amaechi admitted under cross examination before the trial Court cannot in law be used to contradict the said witness.
3. Whether the learned Justices of the Court of Appeal were right in law when they accepted the purported evidence of oral admission of offence by the Appellant to the police and relied on same in upholding the conviction of the Appellant.
4. Whether in the light of the evidence of the prosecution and especially their statements to the police by the PW1, the learned justices of the Court of Appeal were right in holding that the defence of alibi raised by the Appellant which was not investigated by the police did not avail him.

The Respondent’s brief of argument settled by Mrs. A. N. Eluwa, learned Solicitor-General of Imo State, who is also the Respondent’s counsel was filed on the 24th October, 2016, but deemed filed on the 8th December, 2016. Learned Solicitor-General formulated three issues for determination of this appeal as follow:-
1. Whether on the totality of the evidence-adduced before the Court, the learned Justices of the Court of Appeal were right in holding that the prosecution proved the charge of armed robbery against the Appellant beyond reasonable doubt warranting this conviction.
2. Whether having expunged Exhibit 5, the Learned Justices of the Court of Appeal were justified in holding that there was sufficient evidence to sustain the finding of guilt.
3. Whether the Learned Justices of the Court of Appeal duly considered and rightly rejected the Appellant’s defence of alibi.

Appellant’s reply on point of law is dated and filed on the 5th of December, 2016, but deemed filed on the 8th December, 2016.
The issues raised by parties are similar as they deal with assessment of evidence and ascription of probative value to such evidence. I have read the record of appeal and the briefs of argument submitted by parties and I am of the firm view that the only issue calling for

…………………….B…………………….

determination of this appeal is whether the prosecution proved its case beyond reasonable doubt as to warrant, the Lower Court’s affirmation of the decision of the trial Court.
Before I venture into the consideration of the argument presented by learned counsel for the parties with a view to resolving this issue one way or the other, I wish to set out in brief the facts of this case as disclosed by the evidence before the trial Court.
On the 16th of October, 2004 at about 2.00am, three unknown persons who wore face masks to hide their identities broke into the house of Uriah Aforerinwa an elderly blind person who was in company of his wife Justina Ekeji Aforerinwa. These unknown persons demanded for money and when Uriah Aforerinwa told them that he had no money, they beat him and as a result of his shout, Mercy and Bridget, who are Aforerinwa’s daughters came to the scene. The intruders searched the room and found some money which they collected and escaped by scaling the wall of the fence. The robbery was reported to the police who were told that there was blood stain on the wall where the robbers escaped. It was suggested to the police that the robbers or any of them must have sustained injury. Using this suggestion, the police directed the vigilante members in Ikeduru Local Government Area to look out for anybody with fresh wound and apprehend him. It was as a result of this directive that the members of the vigilante arrested the Appellant who was found to have fresh wound on his leg.
In arguing the appeal, learned counsel for the Appellant submitted that the appellant was not properly identified as one of the persons who broke into the house of Aforerinwa by PW1 who in her first statement to the police admitted that those who broke into their house were masked and could not be identified. It is learned counsel’s further submission that the Lower Court was wrong to have relied on the evidence of PW1 in Court where she identified the appellant as one of those who broke into their house on the 16th October, 2004. It is learned counsel’s submission that PW1 cannot approbate and reprobate at the same time. In aid, learned counsel cited the authority in Bozin vs. The State (1998) 1 ALL Criminal Report 1. According to the learned counsel, PW1 knew the Appellant before the commission of the offence, she ought to have mentioned his name in her statement to the police and even in her earlier evidence in the previous proceeding and not to turn round to identify the appellant while giving evidence from the witness box in the subsequent proceeding. It is learned counsel’s contention that the purported identification of the appellant left so many gaps and raises a doubt which ought to be resolved in favour of the appellant. In aid, learned counsel cited Ikemson vs. State (1989) 3 NWLR (Pt.110) 455; Bassey vs. State (2012) 12 NWLR (Pt.1314) 209 at 234.

On whether the appellant at any stage admitted the offence for which he was charged, tried and convicted, learned counsel submitted that PW1 who previously testified before the Court before the matter was rolled over to be heard de novo before another judge, neither told the Court that the Appellant had admitted committing the offence when he was brought to the scene of the crime, nor did she say so in her statement to the police. According to the learned counsel, the evidence of PW1 is unworthy of credit as it contradicts her statement to police and her previous evidence before the Court. In a further argument, learned counsel submitted that the Court of Appeal was wrong to have acted on such evidence to uphold a judgment which it would have set aside. In aid learned counsel cited Adekoya vs The State (2012) 9 NWLR (Pt.1306) 539 at 568 paras E  G; Abogede vs. State (1996) 5 NWLR (Pt.448) 270; Ogoala v. State (1991) 2 NWLR (Pt.175) 509.

Finally on the issue of identification, learned counsel submitted that the police investigator who handled investigation into this case was not called as a witness and that the failure of the prosecution to carry out identification parade is fatal to the prosecution’s case.
In reply to the submission of the learned appellant’s counsel, learned Solicitor-General of Imo State who appeared for the Respondent submitted that the prosecution proved its case at the trial Court beyond reasonable doubt and the conviction of the Appellant was rightly affirmed by the Lower Court. Learned Solicitor-General, further submitted that the appellant admitted the offence in the presence of PW1 when he and his co-accused were arrested and brought to the scene of the crime. According to the learned Solicitor-General, the

…………………….C…………………….

evidence of a single witness would be sufficient to ground a conviction where such evidence is credible and cogent. In aid, learned Solicitor-General cited Oguonzee vs The State (1997) 5 NWLR (Pt. 551) 521 (1998) 4 SC 110; Effiong vs State (1998)  8 NWLR (Pt.562) 362. Learned Solicitor-General further submitted that it is not in every criminal case that an identification parade is required and that the contradictions highlighted in the evidence of PW1 is not sufficiently material and substantial as to warrant the setting aside of the judgment of the trial Court. In aid, learned counsel cited Shurumo v. The State (2010) 16 NWLR (Pt.1218) 65 at 81; Abogede v. The State (1996) 5 NWLR (Pt.448) 270; Nasiru v. The State (1999) 2 NWLR (Pt.589) 87.

The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Akpan v. The State (1990) 7 NWLR (Pt.160) 101; Adamu vs. A.G. Bendel State (1986) 2 NWLR (Pt.22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with criminal offence shall be presumed innocent until he is proved guilty. It is therefore plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi vs. The State (1993) 7 NWLR (Pt.307) 511 at 531 paras A  C; Solola vs. The State (2005) 5 SC (Pt.1) 135; Bakare vs. The State (1987) 1 NWLR (Pt.53) 579.

The Appellant was charged, tried and convicted under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 vol. xxii Laws of the Federation of Nigeria 1990, as amended by Decree No. 62 of 1999, (Henceforth to be called the Act). Section 5 of the Act, which is now Section 6 of the Robbery and Firearms (Special Provisions) Act 2004, provides as follows:-
“6. Any Person who-
(a) Aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3, and 4 of this 
Act; or
(b) Conspires with any person to commit such an offence; or
(c) Supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded again and punished accordingly under this Act
Section 1 of the Act provides as follows:-
“1”. (i) any person who commits the offence or robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
2. If –
(a) any offender mentioned in sub-section
(1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.”
From the provision of Section 6 of the Robbery and Firearms (Special Provisions) Act, the prosecution can only succeed in proving the offence of criminal conspiracy, if it establishes the following ingredients:-
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.

The burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence.
In the instant case, throughout the judgment of trial Court, nothing was said about conspiracy for which the Appellant along with his co-accused were charged. After the conviction and allocutus, the learned trial judge pronounced sentence in the following words:-
“It is our law under which the convicts were arraigned that anyone charged with the offence of armed robbery if and when tried and convicted by a Court of competent jurisdiction pays with his own life. No option of fine. My hands are tied. The sentence of this Court upon you is that each and every one of you be hanged by the neck until you be dead. May the Good Lord have mercy on you.

…………………….D…………………….

The general definition assigned to the word conspiracy” in the realm of criminal law is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with an intent to achieve the objective of the agreement. A charge of conspiracy is a separate offence from the completed offence and it can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person. The Court in pronouncing sentence, must separately do so in respect of conspiracy and the completed offence. See State v. Salawu (2011) 8 NWLR (Pt.1279) 580. In the instant case, having reviewed the whole proceedings of the trial Court, there was no separate, categorical and direct finding by the trial Court on any of the ingredients of the offence of conspiracy. The Lower Court also failed to make statement on the charge of conspiracy. I take it therefore that the Appellant was not tried and found guilty of the offence of conspiracy as that aspect was abandoned by the trial Court. Even though the trial Court and the Lower Court did not comment on the charge of conspiracy, and the appellant did not make it an issue, it is very clear that the two Lower Courts did not avert their minds to the fact that the appellant was said to have conspired with others to commit the offence for which he was charged tried and convicted. Was that charge of conspiracy a mere cosmetics which never took place? If that is so could that have an impact in the charge for robbery which ultimately led to the conviction and sentence of death by hanging imposed on the Appellant. This will be made manifest anon.
For the prosecution to prove the offence of armed robbery, it must prove the following ingredients:-
1. That there was robbery.
2. That the robbery was an armed robbery.
3. That the accused was one of those who robbed 
or took part in the robbery. See Bello vs. State (2007) 10 NWLR (Pt.1043) 564; Nwachukwu v. State (1985) 1 NWLR (Pt.11) 218; State vs. Salawu (supra).

There is sufficient evidence to show that on the night of 17th October 2004, there was incidence of robbery in the residence of Uriah Afoerinwa. PW1, who is the wife of Uriah Afoerinwa testified to that fact and nobody has so far contradicted that testimony. In her testimony, PW1 said:-
On 16th October, 2004, I was asleep in the night with my husband at about 12.00am. We heard a loud sound at our door and it got opened. Three people zoomed inside. We started shouting the (sic they) pointed gun on my neck saying if I shout I will die. They started searching the house and took N500,000 we were using to build house. They then left saying that they have got what they wanted.

From this piece of evidence, it is clear that the robbery that took place in the house of Uriah Ekeji Afoerinwa was an armed robbery.
The question that now seeks for answer is, whether the Appellant was one of those who took part in the armed robbery? PW1 in her statement to the police which was tendered and admitted at the instance of the defence counsel to contradict her evidence in Court, was admitted as Exhibit 2. In Exhibit 2, PW1 stated as follows:-
While I was sleeping, I heard a hard hit on my husbands door. The next thing I heard was when someone was asking my husband, after slapping him, where does your daughter keep money when he replied that he is blind and does not know anything about money they started beating him. The people that came inside the house were four while others were outside the house and shouting. They also searched around all the corners of my own apartment and eventually carried away one small bag, where my daughter, Bridget kept some reasonable sum of money. They (sic) people that came inside my room covered their faces and were wearing caps. So I could not identify them. I cannot say the actual amount of money that was removed from their (sic). The money belong to Bridget and she can say how much to (sic) contained in the bag.
The previous evidence of PW1 before another judge who had started hearing the case was also tendered in evidence and admitted as Exhibit 1. This exhibit basically was to contradict her evidence. She testified before that learned judge as follows:-
“While we slept at about 2.am in the early hours of the morning, we heard a big bang on our door, and the door carved in; three persons jumped into the house. My husband started shouting – who are you people! As my husband was shouting, one of the three persons lifted the fallen door and placed same on my husband. The three persons took away some

…………………….E…………………….

money from our house, which money was meant for building a house. The three persons covered their faces and I did not know them. They counted more than N500,000.
PW2, Mr Emmanuel Luke is Inspector of Police who investigated the case. Through this witness, the 1st statement of the Appellant made on undated November, 2004 (actual date not provided), the 2nd statement of the appellant made on the 4th November, 2004 and the 3rd statement made by the Appellant were admitted in evidence and marked Exhibit 3, 5 and 6 respectively. Thereafter the case was adjourned to 28th of September, 2010 for cross-examination of witness and further hearing, which did not take place at all. In his judgment, the learned trial judge after referring to the pieces of evidence by the two prosecution witnesses and the defence witnesses concluded as follows:
So far this is the case as put-up by both sides on the divide. I have given careful consideration to this case and reviewed the law cited. Simply put, there was armed robbery in the house of Ekeji. Both sides agreed to this. DWS 1, 2, and 3 said they hear of it. PW2 one Justina Ekeji gave graphic details what transpired on that fateful night. She was in bed with her husband when they heard a big loud bang on their door and to and behold 3 men burst in, one pointed a gun at her neck (throat) threatening her not to shout at the risk of being shot if she did. She testified that she knows them well and identified them. They ransacked her room making away with the sum of N500,000.00. She said they sustained injuries in trying to scale the fence and the window. To this all we got from the accused persons was denial. The so called alibi 1st accused tried to put cannot hold water. In his extra-judicial statement, he said it was his brother mother (sic) who sent him to Aba to see his sister, in open Court he said he went to Aba to his brother to collect money for his IT. However the law is that where there is direct and positive evidence of participation, the alibi even if raised will be rebutted by such evidence as in this instant case.
It was on the basis of the reasons stated above, that the trial Court was convinced that the prosecution had done a good job and proceeded to convict the Appellant and his co-accused.
At the Lower Court, Exhibit 5, the confessional statement of the Appellant was rightly in my view expunged from the record of this appeal on the ground that the learned trial judge admitted it without conducting a trial within trial, despite objection from the appellant that the so called confessional statement was obtained under threat. After expunging Exhibit 5, the Lower Court went on to consider the defence of alibi which was put forward by the appellant and came to conclusion that the defence of alibi was highly untrue and a makeup story because the stories told by the Appellant in his statements to police Exhibits 3 and 6 as well as his evidence in Court are so contradictory and therefore remained a cooked up story. The Lower Court found that the evidence of PW1 and PW2 which the trial Court believed, fixed the Appellant at the scene of crime and that when the Appellant was taken on investigation to PW1’s house, the Appellant admitted in her presence that he and the other accused persons committed the armed robbery and even showed the police how they scaled the fence of the victims house. The Lower Court harped so much on the inconsistencies inherent in the Appellant’s stories about his defence of alibi, but surprisingly nothing was said about the inconsistencies in the stories of PW1, a witness for the prosecution that has the burden of proving beyond reasonable doubt the guilty of the appellant.
Exhibit 1, although the testimony of PW1 in a previous proceedings before Hon. Justice Amaechi who did not complete the case, it was revived and made a relevant evidence in this case when it was tendered and admitted in evidence through PW1. I think the first place for the Lower Court to begin its consideration of the appeal before it was to look at the prosecution case in order to find out whether it had proved its case at the trial Court beyond reasonable doubt, before considering whatever defences the Appellant put forward. I think the Lower Court jumped the gun when it went on to consider the defence of alibi by the appellant before it treated the prosecution’s case. The burden of proof that the Appellant committed the offence for which he was found guilty lies with the prosecution. PW1 in her extra-judicial statement to the police which was tendered and admitted in evidence as Exhibit 2, categorically stated that those who broke into their house were masked and their identities were unknown. In her evidence in Court, she suddenly turned round to identify the Appellant and his co-accused as those who broke into their house. PW1 is the only one who said that the appellant was brought to their house by the police and he admitted in her presence that he and others participated in the robbery. Even PW2, the police investigator did not volunteer such evidence. This is what PW2 said about the visit to the house of PW1;
“In the course of investigation as soon as the case was transferred from Imo State Police Command to Umuahia

…………………….F…………………….

for continuation of investigation. I recorded the statement of complainant and her witnesses about 4. I therefore proceeded with a team of policemen to the scene with the accused and the complainant. At the scene witnesses interviewed and they made statement.
Thereafter the 3 accused persons were reinterogated and they made their statement which was recorded. Also the team of policemen who investigated the matter earlier on at Owerri were interviewed and they made their statements.

PW2 further testified that he investigated the petition against the state police, interviewed members of the vigilante group that assisted the police in arresting the Appellant and his co-accused and recovered a brand new motorcycle bought by one of the accused with the stolen money. The name of one of the accused was not given. It is the police that took the appellant to the scene of the crime, and the police investigator who did so did not corroborate the evidence of PW1 that the appellant admitted the robbery and demonstrated how he scaled the fence. In her statement to the police, PW1 said:-
While I was shouting that they have killed my husband, they rushed out of the house with the bag. When I ran behind them, they fired gun shots and I ran buck to the room and they climbed out through the fence.”

In her evidence before the Court, PW1 said:-
We started shouting the (sic they) pointed gun on my neck saying if I shout I will die.”

In her evidence before Justice Amaeshi, the proceeding which was tendered and admitted to contradict PW1, this witness said:-
While we slept at about 2.00am in the early hours of the morning, we heard a big bang on our door, and the door carved in, three persons jumped into the house. My husband started shouting – who ire you people! As my husband was shouting, one of the three persons lifted the fallen door and placed same on my husband. The three person took away some money from our house, which money was meant for building a house. The three persons covered their faces and I did not know them.

From the record of proceedings at the trial Court there are inconsistencies in extrajudicial statement of PW1 and her sworn testimony in Court with respect to the identification of the Appellant. There is contradiction in the previous evidence of PW1 and her evidence in the trial Court where the Appellant was found guilty. In her previous evidence, no gun was pointed to her neck, but in the latter evidence the robbers pointed a gun at her neck. The law is settled that where a witness made an extra-judicial statement which is inconsistent with his sworn testimony on oath in Court and he gives no reasonable explanation for the inconsistencies, the only option available to the Court is to regard his evidence unreliable. Clearly the evidence of PW1 upon which the Lower Court so relied in finding the Appellant guilty is unreliable. An oral evidence of PW1 that the Appellant admitted the offence in her presence is not corroborated in any material particular since Exhibit 5 which could have provided some assistance had been expunged from the record.
The Lower Court found that the Appellant told lies with respect to the defence of alibi. The fact that an accused person told lies to wriggle out of trouble would show that he is a liar, but that does not change or reduce the burden of proof squarely and constitutionally placed on the prosecution to establish the guilt of the accused person beyond reasonable doubt.
This is a criminal case in which the Appellant was sentenced to death. Therefore all the defences available to him must be explored even though such defences were not canvassed on the Appellant’s behalf. The Appellant was arrested because he had fresh wound which was suspected to have been caused when he scaled the wall to escape. According to the prosecution there was blood stain on the wall. What effort did the prosecution make to relate the wound to the blood stain on the wall of the house of the husband of PW1. This is twenty first century which has brought with it advanced technological know-how. A DNA could have easily solved the question as to whether the blood stain was from the Appellant’s body. No evidence was led to ascertain whose blood stain was on the wall. To trace the blood stain to the appellant is a mere speculation which no Court can act upon. In Agip (Nig) Ltd v. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 413 paras B  D, this court said:-
It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and Laws. They decide issues on facts established before them and on laws. They must avoid

…………………….G…………………….

speculation. See Oguonzee vs. State (1998) 5 NWLR (Pt.551) 521; Ikenta Best (Nig) Ltd v. A.G. Rivers State (2008) LPELR 1476; Galadima v. The State (2012) LPELR 15530.

In the instant case, identification parade is unnecessary since the PW1 and her daughters were unable to establish acquaintance or see the faces of the robbers during the commission of the offence. However PW1 admitted in her evidence before the Court that she knew the Appellant before the robbery and that the Appellant is from Amiyi Akabo like her. In her extra-judicial statement, she stated as follows:-
“The next thing I heard was when someone was asking my husband, after slapping him where does your daughter keep money?”

Since she knew the Appellant before this incidence, PW1 would have identified him by his voice and informed the police at the earliest opportunity. It was only in Court, she admitted knowing the appellant, which admission had become obsolete and added no value to the prosecution’s case.
The Supreme Court sitting on appeal is usually reluctant to interfere with the concurrent findings of fact by Courts below. In the instant case, the decision of the High Court and the Court of Appeal have failed to meet the justice required in this case. It will not be in the interest of justice to condemn the Appellant to death on contradictory evidence presented by the prosecution. In Ukwunnenyi vs State(1989) 5 NWLR (Pt.113) 137 at 156 Oputa JSC had this to say about proof beyond reasonable doubt:-
This is the policy of our law. The policy derives from the fact that human justice has its limitations. It is not given to human justice to see and know as the great eternal knows the thoughts and actions of all men. Human justice has to depend on evidence and inference. Dealing with the irrevocable issues of life and death, she has to tread cautiously, lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty persons escape than for an innocent man to be condemned. And that is why the Court gives the benefit of any reasonable doubt to accused person.
This is a case in which I will interfere. Accordingly, the sole issue formulated by me is resolved in favour of the Appellant. Having so resolved the sole issue in favour of the Appellant, this appeal shall be and it is hereby allowed. The decision of the High Court of Imo State which was affirmed by the Court of Appeal, Owerri Division is hereby set aside.
The Appellant is acquitted and discharged accordingly.
OLABODE RHODES-VIVOUR, J.S.C.: I adopt the facts as presented by my learned brother, Galinje JSC. The learned trial judge convicted the appellant for armed robbery. Excerpts from his lordships reasoning are as follows:
..She was in bed with her husband when they heard a big loud bang on their door and lo and behold 3 men burst in. One pointed a gun at her neck threatening her not to shout at the risk of being shot if she did. She testified that she knows them very well and identified them. They ransacked her room making away with the sum of N500,000.00. She said they sustained injuries in trying to scale the fence and the window..
The Court of Appeal affirmed the judgment of the trial Court. The issues in this appeal are straightforward. They call into question evaluation, assessment of evidence and ascription of probative value to the evidence.
In proof of its case, the prosecution called two witnesses, PW1 and PW2.
PW1 claimed to be a victim of the armed robbery. She is thus a vital witness for the prosecution.
PW2 is the investigating Police Officer. He did not have much to say as regards the actual robbery.
The Confessional Statement of the appellant was thrown out by the Court of Appeal because the trial Court failed to conduct a trial within trial to find out if the confessional statement was a free and voluntary confession of guilt made by the appellant, before it was admitted as an exhibit.
After expunging the appellant’s confessional statement the only evidence available in proof of the prosecution’s case is the evidence of PW1.

…………………….H…………………….

In PW1’s earliest statement to the Police, Exhibit 2, she said:
They covered their faces and were wearing caps. So I could not identify them

In Court in her testimony PW1 identified the accused persons as those who came and did the robbery. She said I know them. See page 60 of the Record of Appeal.
The above shows the inconsistency in evidence of PW1. The well laid down position of the law is that where a witness has made a statement before trial which is inconsistent with the evidence he gives in Court on a material point and gives no cogent reasons for the inconsistency, the Court should regard his evidence as unreliable. See Onubogu & Anor v. State (1974-1975) 9 NSCC p.358.
PW1 made a statement to the Police before trial, when the events of 16 October 2004 were fresh in her memory. She said that she could not identify the robbers because they covered their faces, but in her evidence in Court she identified the accused persons, and the appellant as those who broke into her house and robbed her family in the night of 16 October 2004. There is an inconsistency on a material point to wit: The identity of the robbers that broke into her house on 16 October 2004. The inconsistency was never explained and both Courts below never addressed it.
A witness must be consistent on material facts. She cannot say in her extra judicial Statement that she cannot identify the robbers and then in Court in her sworn testimony say the opposite. That she can identify the robbers. She knows them.
Counsel and his witness may present the semblance of the truth, but justice is always after the truth.
PW1 cannot take a stance on a material point such as the identity of the appellant in her extra judicial statement and an entirely different and inconsistent stance in her sworn testimony in Court. PW1 was definitely not telling the truth and the Court should have no reservations concluding that PW1s testimony is unreliable.
Relevant extracts from the reasoning of the learned trial judge alluded to earlier in this judgment show that the learned trial judge fell into unpardonable error by relying only on the testimony of PW1 in Court to convict the appellant, oblivious of the fact that PW1 made a statement before trial which was the exact opposite of her testimony in Court on a material point. Surprisingly the Court of Appeal overlooked the error by the trial Court. This is unfortunate and wrong.
After finding that PW1s testimony is unreliable, there is absolutely no evidence against the appellant that he was one of the armed robbers.
In such a situation, the appellant is entitled to the benefit of the doubt. The appellant is entitled to an acquittal and discharge. Appeal allowed.
It is for this and the more detailed reasoning in the leading judgment of my learned brother Galinje, JSC, that I too allow the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree in totality with the judgment just delivered by my learned brother, Paul Adamu Galinje JSC and to register my support for the reasoning I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Owerri Division delivered on 14th March, 2013 wherein that Court below or Lower Court upheld the conviction and sentence of the appellant for the offence of Armed Robbery by Ngozi Opara J., of the Imo State High Court sitting at Iho.
BACKGROUND FACTS
The appellant, Uchechi Orisa and two other accused persons were arraigned before the High Court of Imo State, sitting at Iho on a charge of armed robbery.
The trial commenced before Hon. Justice Amaeshi. Plea was taken and the trial continued till the evidence of PW3 was taken. Thereafter, the matter was assigned to a new Judge, Hon. Justice N. B. Ukoha. At this point, the 3rd accused person jumped bail and the trial proceeded afresh with the 2 accused persons.
Again, the case was further assigned to

…………………….I…………………….

Hon. Justice Opara where the trial commenced denovo.
Plea was taken on 3/7/2008 with the appellant pleading not guilty to the charge, alongside the 2nd accused person. Trial commenced on 21/10/2008 with the testimony of PW1.
Testifying, the PW1, Justina Ekeji narrated how she was sleeping with her husband on the fateful day, at about 12.00am, when she heard a loud bang on the door. The door was forced open and three persons zoomed inside. The assailants pointed a gun at her neck threatening to shoot her if she shouted. They then started searching and ransacking the house and removed N500,000.00 (Five Hundred Thousand naira) which they were deploying to house construction. The robbers then left, saying they had gotten what they wanted.
Continuing, she narrated that after the incident, the robbers scaled the fence. The police caught them and brought them to her house and they made admissions telling the police how they scaled the fence to gain access into the compound. She admitted making statements to the police. She equally admitted that Evangelist Bridget Afoerinwa was her daughter and was the owner of the money stolen. She said that her daughter is alive.
She added that she knows the accused persons and that they sustained injuries. She identified the accused persons as those who robbed her.
The PW2 was Inspector Emmanuel Luke who gave evidence of his investigation of the case.
The defence opened on 23rd January, 2013 with the DW1 – Augustine Orisa who gave his address as 10d Ifere Street, Aba, Abia State. He testified that he knows the accused (appellant) who he described as his younger brother. The appellant testified in his defence as DW2, denying the charge. The 2nd accused in his evidence equally denied any participation in the offence.
The defence closed their case and both counsel submitted and adopted their respective Written Address. In a well considered judgment, the trial Judge evaluated the evidence adduced at the trial and held that the prosecution had proved their case against the accused persons beyond reasonable doubt. They were convicted accordingly for the offence and sentenced to death.
Being dissatisfied with the judgment of the trial Court, the appellant appealed to the Court of Appeal, who heard the appeal, dismissed same and affirmed the conviction and sentenced of the trial Court. The appellant has further appealed to the Supreme Court.
On the 17th day of December, 2017 date of hearing learned counsel for the appellant, L. M. Alozie Esq., adopted his brief of argument filed on 24/7/15 and a reply brief filed on 5/12/2016 and deemed filed on 8/12/16. He formulated four issues for determination which are thus:
1. Whether the learned Justices of the Court of Appeal were right in law when they upheld the conviction and sentence of the appellant by the trial Court while the charge of conspiracy and the armed robbery were not proved beyond reasonable doubt (Ground 1)
2. Whether the extra-judicial statement of the Pw1 and her evidence in the previous proceedings before Hon. Justice A. U. Amaeshi admitted under cross-examination before the trial Court cannot in law be used to contradict the said witness (Ground 2)
3. Whether the learned Justices of the Court of Appeal were right in law when they accepted the purported evidence of oral admission of offence by the appellant to the police and relied on same In upholding the conviction of the appellant (Ground 3)

4. Whether in the light of the evidence of the prosecution and especially their statements to the police by the PW1, the learned justice of the Court of Appeal were right in holding that the defence of alibi raised by the appellant which was not investigated by the police did not avail him.

…………………….J…………………….

The learned Attorney-General of Imo State, M. O. Nlemedim Esq for the respondent adopted the brief of argument settled by Alma Eluwa (Mrs.), the Solicitor General of Imo State at the time. The respondent identified three issues for determination which are as follows:
1. Whether on the totality of the evidence adduced before the Court, the learned Justices of the Court of Appeal were right in holding that the prosecution proved the charge of Armed Robbery against the appellant beyond reasonable doubt, warranting his conviction. (Distilled from Grounds 1 and 2 of the Grounds of Appeal)
2. Whether having expunged Exhibit “5”, the learned Justices of the Court of Appeal were justified in holding that there was sufficient evidence to sustain the finding of guilt. (Distilled from Ground 3 of the Grounds of Appeal)
3. Whether the learned Justices of the 
Court of Appeal duly considered and rightly rejected the appellants defence of alibi. (Distilled from Ground 4 of the Grounds of Appeal).
The issues above crafted by the appellants are apt and easy to utilise and I shall make use of them.
ISSUES 1, 2 & 3
These issues raise the questions whether from the totality of the evidence adduced by the appellant the prosecution proved the case of armed robbery against the appellant and if with the expurgation of Exhibit “5” there was enough on which the case of the prosecution court be sustained.

Learned counsel for the appellant submitted that PW1 who knew the appellant very well as her kinsman failed to mention his name in her statement to the police which showed the unreliable nature of her testimony. That proof beyond reasonable doubt in establishing the guilt of an accused must come from compelling and conclusive evidence and this burden of proof remains with the prosecution and does not shift. He cited Oseni v State (2012) 5 NWLR (Pt.1293) 351 at 388; Anyanwu v State (2012) 16 NWLR (Pt.1326) 221; State v. Azeez (2008) 14 NWLR (Pt.1108) 439 etc.

He stated further for the appellant that the evidence of PW1 identifying the appellant as one of the robbers is at variance with her evidence before the previous Court and her statement to the police. That in the light of that material contradiction the Court cannot pick and choose which version of the evidence of PW1 to believe and which not to believe. He referred to;
Onubogu v State (1974) NSCC p.358 at 366;
Dogo v State (2001) NWLR (Pt. 699) 192 at 211;
Onuchukwu v State (1998) NWLR (Pt.547) 576;
Ibeh v State (1997) NWLR (Pt.484) 632 at 655 etc.

That a lot of doubts abound which should be resolved in favour of the appellant.
Learned counsel for the appellant further contended that the victim of the crime, the daughter of PW1 was not called to testify created a gap in the case of the prosecution. He cited Bello v State (2012) 8 NWLR (Pt.1802) 207 at 231; Ugwanyi v FRN (2012) 8 NWLR (Pt.1302) 384.

Learned counsel for the respondent submitted that the duty of the prosecution in all criminal trial is to prove it’s beyond reasonable doubt and the respondent has the legal duty to establish the requisite ingredients of the offence which are thus:
l. That there was robbery or series of robberies.
ii. That the robbery was an armed robbery carried out with firearms or offensive weapons.
iii. That the person charged with the offence was one of the robbers or implicated therein-
He cited Bozin v. The State (1985) 2 NWLR (Pt.8) 479;
Eke v The State (2011) 202 LRCN 143 at 158;
Afolalu v State (2010) 16 NWLR (Pt.1220) 584.

That the above ingredients can be proved through any or a combination of the following:
i. Confessional statement of the accused.
ii. Circumstantial evidence linking the accused to the crime.
iii. Evidence of an eye-witness.
See Igabele v The State (2006) ALL FWLR (Pt.311) 1797 at 1823.

…………………….K…………………….

That the prosecution through the evidence of PW1 and PW2 established ingredients 1 and 2 of the charge. That PW1 was both an immediate victim and eye – witness of the armed robbery. That even the third ingredients was established by the eye-witness account of PW1. He stated that the evidence of a single witness would be sufficient to ground a conviction where the evidence is credible and cogent. He cited;Oguonzee v The State (1997) 5 NWLR (Pt. 551) 521; Effiong v The State (1998) 8 NWLR (Pt.562) 362.

On the identification, learned counsel for respondent stated that it is not every case that an identification parade must be conducted to determine the identity of the culprits and the exception to the need for identification parade is like the present circumstance where the appellant and co-accused were arrested shortly after the armed robbery incident. He cited Ikemson v The State (1989) 3 NWLR (Pt.110) 455; Ebenehi v The State (2008) 10 NWLR (Pt.1096) 596 at 607.
That the prosecution is not obliged to call a host of witnesses or any particular witness before the case is said to have been made out and nothing brings into operation the presumption in Section 167 (d) of the Evidence Act 2011. He cited;
Babarinde v The State (2014) 10 NCC 567 at 610 – 611;
Akalonu v The State (2002) 6 SC 107 at 112 – 113;
Alonge v. IGP (1959) 4 FSC 203.
Effiong v The State (1998) 8 NWLR (Pt.562) 362.

That the contradictions appellant referred to in the evidence of the prosecution witnesses are not material and therefore not fatal to the case of the prosecution.
He referred to;
Shurumo v. The State (2010) 16 NWLR (Pt.1218) 65 at 81:
Abogede v The State (1996) 5 NWLR (Pt.448) 270;
Nasiru v The State (1999) 2 NWLR (Pt.589) 87;
Jerry Ikuepenikan v The State (2011) 1 NWLR (Pt.1229) 449 at 454 etc.

In respect of the expunged Exhibit “5”, the confessional statement of the appellant, learned counsel for the respondent said its expurgation did not jeopardise the case of the prosecution as there was more than enough evidence outside of Exhibit 5 from which the conviction could and was secured as there was Exhibit “6 made to PW2 and the evidence of PW1 among others. He relied on Babarinde v The State (2014) 10 NCC 567 at 615.

The prosecution has a bounden duty in all criminal trials to prove its case beyond reasonable doubt and so in a charge of armed robbery such as the present case.
Therefore in this instance, the prosecution had to establish on this standard of proof beyond reasonable doubt the following requisite ingredients of the offence of armed robbery, thus:
a. That there was robbery or series of robberies.
b. That the robbery was an armed robbery carried out with firearms or offensive weapons.
c. That the person charged with the offence was one of the robbers or implicated therein.

I rely on the following cases Bozin v The State (1985) 2 NWLR (Pt.8) 479; Eke v The State (2011) 202 LRCN 143
at 158; Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584.
The method of carrying out the proof can be any or a combination of the methods, viz:
i. Confessional statement of the accused.
ii. Circumstantial evidence linking the accused to the crime
iii. Evidence of an eye-witness.
See Igabele v The State (2006) ALL FWLR (Pt.311) 1797 at 1823.

The definition of armed robbery is found in Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990, to be a robbery which was carried out while armed with any firearms or any offensive weapon or where the offender is in company of any person so armed, or at or immediately before or immediately after the time of the robbery, the said offender wounds or uses any physical violence to any person.
What would constitute firearms have been defined to include cannon, gun, riffle, pistol etc and offensive in

…………………….L…………………….

weapons include bow and arrow, spear, cutlass, matchet, dagger etc.
Getting back to the methods through which proof of the offence could be carried out, PW1 testified as eye witness as PW1 doubled as a victim. She stated thus:
“On 16/10/04, I was asleep in the night with my husband at about 12.00am. We heard a loud sound at our door and it got opened. Three people zoomed inside. We started shouting. They pointed gun on my neck saying if I shout I will die. They started searching the house and took N500,000.00 we were using to build house. They then left saying that they have got what they wanted. They scaled through the fence.”
She stated further:
“I know them. They had bruises and the police caught them and brought to hour and they started telling the police the places they climbed and came into the house.”

On this evidence of the PW1, the Court of trial made the following findings, viz:
“The evidence of PW1……….which the Court believed fixed the appellant at the scene of crime. When the appellant was taken on investigation to Pw1’s house, appellant admitted in her (PW1) presence that he and the other accused persons committed the armed robbery and showed the police how they scaled the fence of the victim’s house.”
Though the Pw1 had not immediately identified the appellant as one of the assailants, the attackers being masked, but from her later account of the incident there was not much from which the trial Court could make the linkage between appellant and the offence and so the absence of an identification parade was fatal.
The point has to be made that proof beyond reasonable doubt is not the same as proof beyond a shadow of doubt. Once the credible, cogent evidence of the prosecution witnesses satisfied the expected standard of proof beyond reasonable doubt which is the same as that proof with a high degree of probability that the accused committed the offence. See Lori v The State (1980) 8 – 11 SC 81 at 99; Akalezi v The State (1993) 2 NWLR (Pt.273) 1 at 13.

In this regard, the learned counsel for the respondent has put across the submission that there was enough on which the guilt of the appellant would be founded and the Court below’s right to affirm it.
The appellant had made a hue and cry over the owner of the money, N500,000.00, being Evangelist Bridget Afoerinwa not coming forward to testify as fatal as it provokes the presumption under Section 167 (d) of the Evidence Act 2011 to indict the prosecution for withholding of evidence which would have been detrimental to its case. That posture is certainly weighty since PW1, Justina Ikeji who was both victim and eye-witness had not made a strong showing in the evidence she proffered, especially on the identification. This is not one of those instances where a single witness testimony would suffice as there are many lose ends.
The cases of;
Babarinde v The State (2014) 10 NCC 567 at 610 – 611,
Akalonu v The State (2002) 6 SC 107 at 112 – 113;
Alonge v. IGP (1959) 4 FSC 203.
Effiong v The State (1998) 8 NWLR (Pt.562) 362, 
would not avail the respondent in this case as they do not apply.
The appellant had raised an issue on inconsistencies in the evidence of PW1 and contradictions in her evidence in Court as against her extra judicial statement and that the Court should take those as fatal to the prosecution case. It needs be said that it is not every contradiction or inconsistency in the evidence of prosecution witness as against the other or even between the testimony of a witness and the extrajudicial statement. For a fatal effect, the contradiction has to be on a material point and not just a minor discrepancy between a previous written statement and a subsequent oral testimony that would destroy or dent the credibility of a witness. Also the testimonies of witnesses cannot be expected to be the same, word for word as like a verbatim recording as that is not in keeping with normal human occurrences. In fact if the versions tallied so well as to be in a parrot like rendition then it is suspect and would lead to the conclusion that they were stories emanating from rehearsed and tutored tales. In the case at hand what the appellant is hanging onto are not minor discrepancies which the Court can safely discountenance. In this case, the discrepancies in the evidence of PW1 as against her earlier statements are material and cannot be ignored.
See; Abogede v The State (1996) 5 NWLR (Pt.448) 270;  Nasiru v The State (1999) 2 NWLR (Pt.589) 87; Jerry Ikuepenikan v The State (2011) 1 NWLR (Pt.1229) 449 at 454; Uwagboe v The State (2008) 163 LRCN 92 at 115 &116.

                                                                           …………………….M…………………….
The learned counsel for the appellant had set out to persuade the Court that the confessional statement of the appellant, Exhibit “5” having been expunged there was no further evidence on which the case of the prosecution would survive. The learned counsel for the respondent that the other parts of the prosecution’s case being the evidence of PW1 and PW2, the exhibits tendered including Exhibits 3 and 6 were enough. In this, the Court below stated thus:
“Exhibit “6” is clearly an admission on the part of the appellant as it contains ingredients of offence of armed robbery for which he was charged. The appellant and his learned counsel even though they challenged Exhibit 5 did not object to the tendering and admissibility of Exhibit “6” made to PW2 on 17-1-2005.”
The Court of Appeal’s reliance on the evidence of PW1 is thus:
“The evidence of the PW1 under cross-examination that when the police brought them, they admitted committing the offence cannot be wished away or assailed.”
On the weight placed on a confessional statement it was held in Babarinde v. The State (2014) 10 NCC 567 at 615, held: W.S.N. Onnoghen JSC (as he then was)
“The inadmissibility of Exhibits 4, 5 and 6 which were the confessional statements of the appellants herein, is not enough to vitiate the conviction and sentence of the appellants for the offences charged as there are sufficient independent evidence on record to sustain the conviction.
Where a conviction of an accused person is not based solely on an inadmissible or expunged confessional statement, but also on independent pieces of evidence which, in effect, corroborate the expunged confessional statement(s) as in the instant case, the conviction and sentence can and is in effect sustained by the independent evidence on record.

Indeed the case of Babarinde v The State (supra) quoted above cannot apply here as with the expurgation of Exhibit 5, the confessional statement there really is not much on which the prosecution could hang its side of the case as doubts have erupted which have to be resolved in favour of the appellant.

ISSUE 4
Whether in the light of the evidence of the prosecution and especially their statements to the police by the PW1, the learned justices of the Court of Appeal were right in holding that the defence of alibi raised by the appellant which was not investigated by the police did not avail him.
Learned counsel for the appellant contended that the Court of trial and later the appellate Court did not evaluate the defence put up by the appellant especially his alibi which the police did not investigate inspite of it being raised early. He cited;
Osuagwu v State (2013) 5 NWLR (Pt.1347) 360;
Nnunukwe v State (2003) 14 NWLR (Pt.840) 219;
Bozin v State (1985) 2 NWLR (Pt.8) 465;
Okosi v State (1989) 1 NWLR (Pt.100) 642 at 236  237.

For the respondent, learned Attorney General contends that the learned trial judge was perfectly justified in rejecting and jettisoning the conflicting accounts of alibi as put up by the appellant after due consideration. He cited;
Ochemaje v. The State (2008) 15 NWLR (Pt.1109) 57;
Patrick Njovens & Ors v. The State (1973) 5 SC 12 at 47.

That the appellants alibi was logically and physically demolished by the credible, direct and positive evidence of participation in the crime by the accused person therefore the claim of alibi would not avail him.
He referred to;
Ikemson v The State (1989) 1 ACLR 85 at 98;
Odidika v. The State (1977) 2 SC 21.
Ntam v State (1998) NMLR 4.

There is no disputing that the trial Court is duty bound to consider all the defences put up by the accused person, express or implied, such that even if those defences seem to stem from a fertile imagination, fanciful with porous lies or even doubtful. However the Court is obliged to be cautious in giving consideration on the defences in order not to be unwittingly sucked into a cesspool of a fairy tale in the guise of reality. However in this case at hand, the none investigation of the alibi is fatal as the evidence set out by the prosecution are not such as on their own pin the

…………………….N…………………….

accused/appellant to the scene of crime at the material time and thereby demolish the alibi. This is an instance where the trial Court ought to have taken very seriously the alibi raised, particularly as there were particulars produced by the appellant at the earliest opportunity.
See;
Ochemaje v The State (2008) 15 NWLR (Pt.1109) 57;
Patrick Njovens & Ors v The State (1973) 5 SC 12 at 
47; Ikemson v The State (1989) 1 ACLR 85 at 98; Odidika v The State (1977) 2 SC 21.
It is in the light of what was made of the alibi that the failure of the police to investigate it was fatal to the prosecution’s case as there was not enough credible evidence which would have neutralized the alibi. See Ntam v State (1998) NMLR 4.
In conclusion, the concurrent findings of the two Courts below not borne out properly from the evidence before the trial Court, this Court has to interfere and I have no hesitation in stating that the appeal has merit and I allow it as my learned brother, Galinje JSC did.
I abide by the consequential orders made.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Galinje, JSC, just delivered now. I agree with His Lordship that being meritorious, this appeal should be allowed.
As shown in the leading judgment, the concurrent findings of the Lower Courts failed to meet the justice of the case, hence, the need to interfere with them. As, it is well-known, this Court will readily upset concurrent findings of Lower Courts where there are exceptional circumstances, such as, where the findings are perverse; where there was a miscarriage of justice or where a principle of Law or procedure was not followed, Ogbu v. State[1992] 8 NWLR (Pt.295) 255; Igago v. State [1999] 14 NWLR (Pt.637) 1; Adeyemi v The State [1991] 1 NWLR (Pt.170) 679; Adeyeye v. The State (2013) LPELR – 19913 (SC) 46; Akpabio v State [1994] 7 NWLR (Pt.359) 635; Ejikeme v. Okonkwo [1994] 8 NWLR (Pt.362) 266.

It is for these, and the more elaborate reasons in the leading judgment that I too shall allow this appeal. I abide by the consequential orders in the leading judgment. Appeal allowed.
AMIRU SANUSI, J.S.C.: I was opportuned to read before now, the draft copy of the judgment prepared and just delivered by my learned brother Paul Adamu Galinje, JSC.
His lordship had ably addressed all the salient issues canvassed by learned counsel for the parties in this appeal before arriving at the conclusion that this appeal is meritorious and accordingly allowed it. I am at one with the reasoning and the conclusion he arrived at. I however wish to proffer few comments of mine in support of the lead judgment.
His lordship has ably summarised the facts of the case culminating into this instant appeal and the submissions by learned counsel to the parties in the appeal, hence it will be superfluous to reproduce them here again.
The law is well settled that for the prosecution to obtain conviction on a charge of armed robbery, it must prove beyond reasonable doubt, the following essential ingredients of the offence as follows:-
(a) That there was committed a robbery or series of robberies.
(b) That the robbery was committed while any or all the robbers was/were in possession of arms or offensive weapon
(c) That the accused person was one of those who took port in the armed robbery.

All these ingredients of the offence must be proved beyond reasonable doubt by the prosecution through credible evidence from eye witnesses or through voluntary confessional statement of the accused person or even through circumstantial evidence pointing squarely and unequivocally that it was the accused charged and no other person was responsible in the commission of the offence charged. See Olayinka Afolalu V The State (2010) 16 NWLR (Pt.1220) 584; Aminu Tanko v The State (2009) 1-2 SC 198; Aruna V The State (1990) 9-10 SC 87.
In the present case, there is no doubt that the offence of armed robbery was committed at the house of the victim Urial

…………………….O…………………….

Aforerunwe and his wife Justine Ekeji Aforerunwa on the fateful day. The only question that needed consideration is whether the prosecution had led credible evidence to actually fix the present appellant at the scene of the crime. PW1 the wife of the victim and PW2 were the star witnesses whose testimonies were relied on by the prosecution in proof of its case.
It is clear from the record of proceedings that the testimonies of these witnesses were full of material contradictions especially on the vital issue of identification. For instance, the PW1 who happened to be an eye witness stated in her statement to the police i.e Exhibit I which she made at the earliest opportunity, clearly confirmed that the robbers who attacked them covered their faces and also that she could not identify any of them. Also in Exhibit 2 PW1 confirmed that the robbers who went to rob them in their house were masked and that their identities were unknown. But while testifying in Court, she made a U-turn and identified the appellant to be among those who robbed them. Besides the above, material contradiction, there are other material contradictions which manifest in the testimonies of both the PW1 and PW2, (the police investigation officer) which if the learned trial judge had closely considered them, he would have arrived at different conclusion in his judgment by giving the appellant the benefit of doubt. It is well settled law, that where the evidence of prosecution witnesses have serious discrepancies which are weighty enough to create some serious doubts, then a conviction cannot stand. These discrepancies were not explained by the prosecution (now respondent), hence it cannot therefore be said that the prosecution had actually proved all the ingredients of the offence of armed robbery against the present appellant. See the cases of Usman Maigari Vs The State (2013) LPELR-20897 (SC); Iko v. State (2001) ALL FWLR (Pt.68)1161; Uwagboe State (2007) All FWLR (Pt.360)1323 at 1339; Ehot v. State (1993) 4 NWLR (Pt.290) 644.

Thus, for these few remarks and the fuller and more detailed reasoning in the lead judgment, the conclusion of which I entirely agree with, I also see merit in this appeal. It is accordingly allowed by me and hereby enter a verdict of acquittal and discharge in favour of the appellant. Appeal allowed.

Appearances

Mr. L. M. Alozie- For Appellant

AND

Mr. M. O. Nlemedim (AG, Imo State) with him, A. N. Eluwa and Emeka Izima- For Respondent

Leave a Reply

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