POPOOLA ADEBAYO RASAKI V. THE STATE

 

 

 

POPOOLA ADEBAYO RASAKI        APPELLANT

V.

THE STATE                                        RESPONDENT

 

 

In The Court of Appeal

(Ekiti Judicial Division)

On Thursday, the 24th day of March, 2011

Suit No: CA/AE/44/C/2010

Before Their Lordships

UWANI MUSA ABBA AJI     ……. Justice, Court of Appeal

CHIDI NWAOMA UWA       ……. Justice, Court of Appeal

HARUNA MOH’D TSAMMANI      ……. Justice, Court of Appeal

 

 

COUNSEL:

Dr. Femi Jolaoso  For the Appelants

Dayo Akinlaja Esq (A.G, Ekiti State)

(Bola Wale-Awe (Mrs.) (D.P.P Ekiti State); Gbemiga Adaramola Esq (D.D.C.L.; Ekiti State); J., Ajibare Esq (A.C.L.O) and A. E Arogundade Esq (Legal Officer) with him).        For the Respondents

 

HARUNA MOH’D TSAMMANI, J.C.A. (Delivering the Leading Judgment): The Appellant and one Adebayo Idowu were charged before the High Court of Ekiti State on three (3) counts of conspiracy to commit a felony, to wit: armed robbery, armed robbery and murder, which are offences punishable under Sections 5(b), 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.39B; Laws of the Federation of Nigeria, 1990 (as amended), and Section 319 of the Criminal Code (Cap. 30), Laws of Ondo State, 1978, as applicable to Ekiti State.

The case of the prosecution against the Appellant is that, on the 15/8/2003, at about 11:55 p.m., robbers broke into the house of the 1st and 2nd prosecution witnesses while armed with guns and made away with the sum of Two Hundred and Twenty-one Thousand, one Hundred and sixty-Five Naira only (N221,165.00) belonging to the P.W.2 (Mustapha Sunmonu). It is also the prosecution’s case that, in the process of the robbery, the P.W.2 suffered a fracture on his leg as a result of gun shots inflicted on him by the robbers and that one Bisiriyu Sunmonu was also shot and later died in the hospital. In an effort to prove their case against the Appellant and the other accused person, the prosecution called eight (8) witnesses and tendered exhibits A, B, C, D and E – E6 respectively. The P.W.1 and P.W.2 testified at the trial that they were able to recognize their assailants, one of whom was the Appellant. The Appellant and his co-accused denied participating in the robbery and contended that, they had spent the night with the Appellant, Sister (D.W.3) at Emure-Ekiti in the night of the 15/8/2003, which is the night of the robbery. The Appellant therefore specifically raised the defence of alibi. It is also pertinent to point out that the 3rd count of murder was dropped before the Appellant was arraigned.

At the close of evidence, the learned trial judge disbelieved the alibi raised by the Appellant and consequently found him and the co-accused guilty of conspiracy to, and the commission of armed robbery, and sentenced both of them to death. The Appellant is aggrieved by the judgment of the lower court and has now appealed to this Court vide his original Notice of Appeal which is undated but contained at pages 105 – 110 of the Record compiled by comrade Femi Jolaoso and filed the 14/05/2009. The Appellant subsequently filed a Motion on Notice dated the 12/01/2009 and filed the 13/01/2009 wherein he sought leave of this court to file supplementary Record of Appeal. By the same motion he sought the leave of this court to Amend his Notice and Grounds of Appeal, and for extension of time to file the Appellant’s Brief of Argument. The said motion was granted on the 14/10/2009. Accordingly, the supplementary Record of Appeal and the Amended Notice of Appeal were deemed filed on the 14/10/2009. It would appear however that the Appellant did not file his Brief of Argument within the extended time allowed him, so he filed another: motion seeking for extension of time to file the said brief. The said Motion on Notice is dated and filed the 31/12/2009 and was granted the 08/06/2010. The Appellant’s, Brief of Argument is therefore deemed filed the 08/06/2010. The Appellants Reply Brief dated the 16/9/2010 and filed the 17/9/2010 is deemed filed the 21/10/2010 vide Motion on Notice dated the 16/9/2010 and filed the 17/9/2010. The Respondent’s Brief of Argument dated 04/06/2010 was filed on the 07/6/2010 within time.

The parties having filed and exchanged briefs of argument, this appeal was heard on the 07/02/2011. The Appellant’s Brief is settled by Dr. Femi Jolaoso, while the Respondent’s Brief is settled by Gboyega Oyewole Esq, Attorney-General for Ekiti State. At the hearing of the appeal on the 07/02/2011, both parties adopted their respective Briefs of Argument, while the Appellant urged us to allow the appeal, set aside the judgment of the lower court and discharge and acquit the Appellant. Learned counsel for the Respondent urged us to dismiss the appeal.

I had earlier on pointed out that the Appellant had the leave of this Court to Amend the Notice and Grounds of Appeal vide motion on Notice dated 12/10/2009 and filed the 13/10/2009. The Amended Notice of Appeal is deemed filed the 14/10/2009. The Grounds of Appeal as contained in the Amended Notice of Appeal, without their particulars are as follows:

1. The Learned Trial Judge erred in law in holding that from the available evidence; the victims of the Robbery Operation were able to identify the Accused persons, that is the 1st Accused/Appellant, along with the 2nd Accused, as the Robbers during and after the Robbery.

2. The Learned Trial Judge erred in holding that the Defense of alibi raised by the 1st Accused/Appellant along with the 2nd Accused had been demolished by the case of the prosecution, and as such the defence of alibi and other defence that might be available to the Appellant and the 2nd Accused even if not raised by them could not avail the accused persons.

3. The trial court erred in law in holding that the charge against the Appellant and the 2nd Accused is not actuated by malice when there exists on record evidence of persistent malice between the family of the Deceased and PW1, and the Appellant since 1994, and prior to the alleged robbery.

4. The trial judge erred law in relying on the evidence of prosecution witnesses whose testimonies are apart from being inconsistent and conflicting, many of the witnesses can best be described as “Tainted witnesses” whose evidence must not only be watched with tooth-comb, but is wholly unreliable.

5. The trial court erred in law in holding that the prosecution has been able to prove by evidence beyond reasonable doubt the ingredients of the offences of conspiracy to commit Armed Robbery and Armed Robbery as alleged or charged.

6. The findings and judgment of the Trial court are altogether unwarranted, unreasonable and unsupported by the available evidence before the Court; viz:-

From these Grounds of Appeal, the Appellant distilled the following issues for the determination of this court; viz:-

1. Whether it was proper for the Trial Court to have held that by the evidence of identification before the Court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on evidence of alibi promptly set up by the Accused persons.

(GROUND 1)

2. Whether the prosecution had fully discharged its burden and, or duty to properly and fully investigate the defense of alibi promptly and fully set up by the Appellant, coupled with the detail particulars laid, or established. (GROUND 2)

3. Whether from the totality of the evidence before the Trial Court as adduced by the prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the alleged victims of the Armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged Offence herein. (GROUNDS 3 and 4)

4. Whether from the totality of the evidence before the Trial Court, the prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery, and principal offences of Armed Robbery as alleged, of charged (GROUNDS 5 and 6)

As pointed out earlier, the Respondent also filed a Respondents Brief of Argument on the 7/6/2010. Therein the Respondent also formulated four (4) issues for the determination of this Court. These are:-

1. Whether from the available evidence on record, identification parade is still necessary to ascertain the visual identification of the Appellants by the witnesses, especially P.W.1 and 2.

2. Whether the prosecution had fully discharged its burden on the defense of alibi as set up by the appellants.

3. Whether the evidence of the witnesses especially P.W.1 and 2 is based on alleged malice between the victims and the 1st Appellant.

4. Whether the prosecution had proved the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable, doubt to ground conviction of the Appellant.

A careful and sober consideration of the issues as formulated by the parties show clearly that the issues so formulated are similar in substance. That being so, I shall adopt the issues as formulated by learned counsel for the Appellant in the determination of this Appeal.

Before I proceed to a consideration of the submissions of counsel on the issues formulated, and resolution of those issues, I find it pertinent to point out that this Appeal No: CA/AE/44/C/2010 is identical in content and substance with Appeal No:CA/AE/43/C/2010; in ADEBAYO IDOWU VS. THE STATE (Unreported), delivered today the 24th day of March, 2011. The appeals in both instances arose from the same proceeding in CHARGE NO: HAD/3C/2004 decided on the 29/6/2007 by Honourable Justice C. I. Akintayo of the High Court of Justice, Ado-Ekiti. The two Appellants in the two Appeals, to wit:

No: CA/AE/43/C/2010 and CA/AE/44/C/2010 were jointly charged in the said High Court for the offences of conspiracy to commit armed robbery and armed robbery. The evidence led against them at the trial Court are identical, The trial Court found both of them guilty of the offences alleged against them and also sentenced both of them to death. As required by law, both Appellants filed separate Notices of Appeal through the same counsel; Dr. Femi Jolaoso. A perusal of the Notices of Appeal show clearly that the grounds of appeal are identical. Similarly, identical issues were formulated in their respective briefs of argument and the arguments therein are on all fours with each other. The only major difference I find in the two cases are in the nature of the defenses available to each of the Appellants, While the Appellant in Appeal No: CA/AE/44/C/2010 made a statement to the police which was recorded in the English Language wherein he raised the defense of alibi, the case of the Appellant in Appeal No.: CA/AE/44/C/2010 is different. This is because as found in my judgment in respect thereof, the statement of the Appellant therein, though tendered and admitted in evidence, was recorded in the Yoruba language, and same was not translated into the lingua franca of this Court, which is English. I found it to be of no evidential value in the determination of whether the defense of alibi or any other defense has been raised therein. Consequently, for the detailed reasons, contained in the said judgment, I did not consider the defense of alibi as applicable to the Appellant in the said Appeal No: CA/AE/44/C/2010. Apart from this exception, all other issues of fact and law in the two appeals are identical. Indeed counsel in the two appeals are the same and their arguments in the two appeals are identical.

Having pointed out that the two Appeals, viz: Appeal No: CA/AE/43/C/2010 and CA/AE/44/C/2010 are identical; I shall now proceed to consider the issues that arose for determination in this appeal as formulated by learned counsel for the Appellant. However, I shall abridge the submissions of counsel herein as same had, been adequately summed up in my judgment in Appeal No: CA/AE/43/C/2010. Similarly, I shall begin the resolution of the issues by first considering issue No. 2. The issue is:

whether the prosecution had fully discharged its burden and or duty to properly and fully investigate the defense of alibi promptly and fully set up by the Appellant, coupled with the detail particulars laid, or established.

This issue as simply put by the Respondent is whether the prosecution had fully discharged its burden on the defense of alibi as set up by the Appellant. The issue deals with the issue of alibi as set up by the Appellant. The issue deals with the issue of alibi.

On this issue, Dr. Femi Jolaoso of learned counsel for the Appellant had contended that, it is settled law that when the defense of alibi has been properly raised by an accused person, the duty and or burden to investigate and disprove the alibi, automatically shifts unto the police. That once the alibi has been duly raised and the evidential burden discharged, the accused person has no duty to prove the alibi, as the onus is on the prosecution to disprove the alibi. The cases of ESANGBEDO V. THE STATE (1989) 7 S.C. (Pt.1) P.36 at PP.45 – 45; OGOALA V. THE STATE (1991) 3 S.C., P.80 AT PP.84 – 85; AZEEZ V. THE STATE (2006) ALL F.W.L.R. (Pt.337) P.485; ABUDU V. THE STATE (1985) 1 S.C. P.222; NDUKWE V. THE STATE (2009) 2 – 3 S.C. (Pt.11) P.35, etc, were cited in support.

Based on the above stated principle, learned counsel for the Appellant reffered to the contents of the statement of the Appellant admitted in evidence as Exhibit “A” at the trial to submit that the Appellant promptly at the earliest opportunity raised the defense of alibi and equally gave the particulars of where he was and the person he was with on the day of the alleged crime of armed robbery. He reproduced the oral testimonies of the Appellant, the D.W.2 and D.W.3 given at the trial, to submit that a patent and patent perusal and, or appraisal of the statements made by the Appellant in Exhibit “A”, show clearly and in great detail that the two accused persons were not at the scene of Crime’ but at Emure, and that they raised the defense of alibi at the earliest opportunity wherein they told the police that they were at Emure on the day of the incident. That the accused persons gave the name of the person they were with on the night of 15/8/2003 to 16/8/2003 as Mrs. Oluyemisi Alake Ogunsakin, the town they were as Emure and the description to the place of the said Mrs. Ogunsakin (D.W.S), as “the back of the High Court of Justice at Emure-Ekiti”. Learned counsel further contented that from the contents of Exhibit “B”, which is the statement of the said Yemi Ogunsakin obtained by the Investigating Police Officers, it is clear that the police did not interview or interrogate the said Mrs. Yemi Alake Ogunsakin on the defense of alibi raised, to the effect that she hosted them on the night of 15/8/2003 to 16/8/2003, which is the day of the alleged robbery. That the D.W.3 Was only interrogated on the date of 9/8/2003, which is an irrelevant date to the charge before the Court.

Dr. Jolaoso of learned counsel for the Appellant went on to submit that, considering the facts pointed out above, and contrary to the holding of the learned Trial Judge at page 41 of the judgment, and the authorities of the Supreme Court in numerous cases such as STATE V. FATAI AZEEZ & ORS (2008) 4 S.C., P.188 AT PP.215 – 216, the Appellant had discharged the evidential burden placed on him, and that the prosecution ought to have investigated the alibi raised, but such investigation was never carried out. Furthermore, that the Appellant stated in his statement that he had a branch office in the house of Oluyemisi Alake Ogunsakin, but the police never investigated this important evidence. That the police did not visit the place to interrogate the landlord of the house, the tenants and to confirm whether they saw the Appellant and the co-accused in the night of the 15/8/2003 to 16/8/2003. That the Appellant gave the name of the official of the Landlord Association who gave him money to buy electric cables in the course of explaining his movement on 15/8/2003 but the police never questioned the said Landlord, That the police obtained statement from Mrs. Alake Ogunsakin which was admitted in evidence as Exhibit “B” but failed to question her in respect of the relevant date of the alleged incident, which is the night of 15/8/2003 to 16/8/2003.

It is therefore submitted by learned counsel for the Appellant that failure of the prosecution to investigate the particulars of the defense of alibi raised by the Appellant is fatal to the prosecution’s case, of which the trial court ought not to have convicted the Appellate. He cited in support the cases of YANOR V. THE STATE (1965) N.M.LR.. P.341 at P.342; BOZIN V. THE STATE (1985) 7 S.C. (Pt.1) P.450 at P.473; OKOSI V. THE STATE (1989) 2 S.C. (PT.1) P.126 AT P.135 and STATE V. AZEEZ (2008) 4 S.C. P.188 AT P.203.

Learned counsel for the Appellant contended finally on this issue that, it was wrong in lawfor the trial court to have held that he disbelieved the testimony of D.w.3 that the police asked her only of the 9/9/2003 which is not relevant to the date of the incident, when it is trite that the evidence between D.W3 and P.W.8 is that of oath against oath. He therefore submitted that, in the absence of any independent evidence or witness to corroborate either of the evidence of P.W.8 or D.W.3, the trial court ought to have resolved the conflict in the two pieces of evidence in favour of the Appellant. He supported his submission with the case of SAMSON UZOKA V. THE STATE (1990) 6 NWLR (PT.159) P.680 AT P.686. That, in any case, a Patent look at the statement obtained from D.w.3 show that, it was solely an answer or a response to a question from P.W.8 to D.W.3 concerning the 9/8/2003. We were therefore urged to resolve the 2nd issue in favour of the Appellant.

The response of the Respondent on issue No.2 is contained at pages 9 – 10 of the Respondent’s Brief of Argument. Therein, learned counsel for the Respondent contended that, there is no iota of evidence that shows that the Appellant slept in the D.W.3′s house in the night of 15/8/2003 to 161812003. That from the testimony of the D’w’3 at the trial, there is absolutely nothing that signifies that the Appellant slept in the house or room of the D.W.3, or that did not sneak out of their shop in the depth of the night of 15/8/2003 to commit the crime and came back to their shop to cover his track.

The Respondent further submitted that the defense of alibi simply means that, the accused was somewhere else at the material time an offence was committed and could not possibly be at the scene of the crime to partake in it. That is a matter peculiarly within the knowledge of the accused person, therefore, he is required to furnish the police with the particulars of that defense. The cases of ALMU V. STATE (2009) 44 W.R.N. P.1 and OMOTOLA V. STATE (2009) 28 W.R.N., P.1 were cited in support. That the Appellant in the instant case did not fully comply with the requirement of the defense of alibi, and that the police yet investigated the defense with its scanty particulars and found same to be baseless in law. It is also his contention that the prosecution was able to demolish the defense at the trial through the testimony of the P.W.1 and P.W.2 which were cogent, substantial, credible and that it fixed and pinned the Appellant to the scene of crime. It is therefore submitted that the trial court had applied the correct principle in its conclusion on the defense of alibi and that if the defense had been true, the Appellant would have called more witnesses beside D.W.3 in support thereof.

The Appellant filed a Reply Brief to the Respondent’s Brief of Argument. Therein, I noticed that the Appellant re-argued the issue of alibi at page 20; paragraphs 3.01(iii), (iv) and 3.02(iii) of the said Reply Brief. The purpose of a Reply Brief as stipulated in Order 17, Rule 5 of the Court of Appeal Rules, 2007 is solely to reply to new point or points of law raised in the Respondent’s Brief. It is not meant to either emphasize or repeat what is contained in the Appellant’s Brief of Argument. See OKPALA & ANOR V. IBEME & ORS (1989) 2 N.W.L.R. (Pt.102) P.208; OKENIRA V. MILITARY GOVERNOR; IMO STATE & ORS (1990) 5 NWLR (PT.152) P.594; NWALI V. THE STATE (1991) 3 NWLR (PT.182) P.663; EZEKWESILE V. ONWUAGBU (1998) 3 NWLR (PT.541) P.217 AND CHUKWUOGOR VS. A.G., CROSS RIVERS STATE (1998) 1 NWLR (PT.534) P.375. I hold that the submissions of the Appellant on the issue of alibi in the Reply Brief are not on any new point of law raised in the Respondent’s Brief of Argument. I deem same as irrelevant and accordingly discountenance same as irrelevant and accordingly discountenance same.

Now, the law is settled that since the offence of armed robbery is a very serious or heinous crime, and the penalty prescribed therefore is the ultimate one; which is death, trial Courts are enjoined to exercise utmost judicial care and caution before convicting thereon. In other words, a trial Court should not convict until all the elements or ingredients of the offence have been clearly established beyond reasonable doubt. See TANKO V. THE STATE (2008) 16 NWLR (Pt.1114) p.564. For that purpose the law places the burden of proof of a criminal charge on the prosecution. That legal or general burden in a criminal proceeding does not shift but remains throughout on the prosecution to prove the guilt of the accused. That is more so as there is a presumption of innocence in favour of an accused person, until he is proven guilty. To that end, the burden on the prosecution is to call credible and cogent evidence which establishes every ingredient of the offence beyond reasonable doubt. That burden includes the duty on the prosecution to rebut any defense that may be raised by the defence. See TANKO V. THE STATE (SUPRA); BELLO V. THE STATE (SUPRA); MUSTAPHA V. STATE (2007) 12 N.W.L.R. (PT.1049) P.637; CHUKWU V. THE STATE (2007) 13 NWLR (PT.1052) P.430 AND ABDULLAHI V. STATE (2008) 17 NWLR (PT.1115) P.203. See also Sections 135 and 138 of the Evidence Act. Accordingly, where the evidence led by the prosecution fails to establish a single element of the offence or the evidence led is not sufficient enough to rebut any defense raised by the accused, the prosecution would have failed in its duty to prove the offence charged and the accused would be entitled to an acquittal.

In the instant appeal, the Appellant upon arrest, had made a statement to the police wherein he contended that he was at Emure-Ekiti on the night of the incident, where he spent the night with his sister, one Alake, in company of his co-accused who was his business manager. That statement is in evidence as Exhibit “A”, found at pages 1 – 2 of the Supplementary Record of Appeal. The Appellant stated at page 2 lines 1 – 22 of, the said Exhibit “A” as follows:

“On 14th August, 2003, I was at Emure-Ekiti with one of my sisters by name Alake Ogunsakin “F” receiving treatment for the ulcer and malaria fever that affected me. My sister is a nurse by profession. She is attached to Health Centre, Emure-Ekiti. I left home for Akure on 15/8/2003 in the morning to buy 16 mm electric wire as a service wire and returned around 5.00pm to Emure. One Waheed Popoola one of my younger brother was equally with me at Emure-Ekiti he was the one that brought the wire I bought at Akure to Ise-Ekiti. My sister being a nurse treated me at home. Her Ernure home is at the back of Emure High Court. I was at Emure on Saturday being 16/8/2003. I left Emure-Ekiti around 5:00 p.m. for Ise-Ekiti. It was the same Saturday that I went and give (sic) D.C.O, Ise-Ekiti his cloth that he brought to me for washing drying a week ago … I was not at Ise-Ekiti during the robbery operation that later resulted to Bisi Summonu’s death”.

It is clear that by the above statement of the Appellant, he has raised the defense of alibi.

Now, alibi is a complete and radical defense which has the capacity to totally exonerate an accused person from the charge preferred against him. The word “alibi” is a Latin word which means “elsewhere”. It captures the physical impossibility of a person being in two place at the same time. When it is raised, it means that the accused was elsewhere other than the scene of the crime alleged. It is a defense which is pleaded by a person accused of committing an offence that he was elsewhere at the time the offence was alleged to have been committed, and therefore having regard to the time and place, when and where he was alleged to have committed or participated in the commission of the offence, he could not have been present. Since the facts constituting the alibi raised by an accused are peculiarly within the knowledge of the accused, and such witnesses that he may provide in support of his plea of alibi, he has the evidential burden to disclose those facts, such disclosure must be with all necessary details and particulars as to time, place and the persons he was with. The disclosure must be made at the earliest opportunity such as to transfer the burden to the police to investigate. See OCHEMAJE V. THE STATE (2008) 15 NWLR (PT.1109) P.57; NDIDI V. THE STATE (2005) 17 NWLR (PT.953) P.17; TANKO V. STATE (SUPRA); AFOLALU V. THE STATE (2009) 3 NWLR (PT.1127) P.160 AND NDUKWE V. THE STATE (SUPRA). The onus placed on the accused to establish the alibi is not as heavy as that cast on the prosecution to prove his guilt beyond reasonable doubt as required by law. The standard of proof required on the accused to establish his alibi is on the balance of probabilities.

That being so, once the accused timeously raises the defense of alibi with full particulars on the standard required of him by law, the burden then shifts to the prosecution to investigate in order to verify such claim. In other words, where the defense of alibi is properly and correctly raised as required by law and the prosecution fails to investigate same, the Court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. In that circumstance, an essential ingredient of the offence charge would have been missing and therefore, it cannot be said that the accused committed or participated in the commission of the offence charged. See AZEEZ V. THE STATE (2005) 8 N.W.L.R. (PT.927) P.312; AJE V. THE STATE (2006) 7 NWLR (PT.980) P.637 and NDUKWE V. THE STATE (supra) at p.82.

In the instant case, the incident leading to the arrest and subsequent trial and conviction of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery took place in the midnight of 15/8/2003. The Appellant was arrested on the 17/8/2003 and he made the statement (Exhibit “A”) to the police on the 18/8/2003. The relevant portion of that statement had earlier on been reproduced. Therein the Appellant had told the police that he had gone to his sister’s place at Emure-Ekiti to receive treatment for ulcer and malaria fever on that 14/8/2003. That he was at his sister’s place till the following morning of 15/8/2003 when he left for Akure to buy some electric wires and returned to Emure around 5.00pm. He also stated that he was at the said Emure in his sister’s house throughout the night of 15/8/2003 till the 16/8/2003 when he left for Ise-Ekiti at about 5.00pm. He accordingly denied that he was at Ise-Ekiti when the robbery took place. In the process of giving the statement to the police, he had mentioned the names of Mrs. Alake Ogunsakin as the person he spent the night with on the 14/8/2003 and 15/8/2003. He mentioned the name of his younger brother one Waheed Popoola as one of the persons who was with him at Emure-Ekiti. The Appellant equally gave the address of the said Mrs. Alake Ogunsakin as being “at the back of Emure High Court”.

The P.W.8, who is the Investigating Police Officer told the trial court that, he proceeded to Emure-Ekiti where he met the said Mrs. Alake, and that the said Mrs. Alake made a statement denying that the Appellant was with her on the day of the incident. The statement made by the said Mrs. Alake Ogunsakin was identified by the P.W.8 and subsequently tendered and admitted in evidence as Exhibit “8″. The said statement (Exhibit “8″) which is dated the 2/9/03 (about 15 days after the Appellant made his statement) reads:-

“I was at Emure on the 9/8/2002 when Mr. Rasaki came to say Hello to me, and went back again to Ise-Ekiti”

Based on those state of affairs, the learned trial judge held that the defense of alibi raised by the Appellant had been successfully demolished by the prosecution, The learned trial judge held at page 41 of the judgment as follows:-

“The evidence of the prosecution as to the investigation of alibi raised by the accused person is more plausible than the one offered by the defense. I disbelieve the testimony of the D.W.3 that police asked her only of 9/8/2003 which is not relevant to this case or the date of the incident. I believe the evidence of the prosecution witnesses that police went to check on the alibi raised by the accused persons and that the outcome of their investigation was Exhibit “B”.. The result of the above analysis of the evidence before this Court show that the prosecution has been able to debunk the defense of alibi raised by the accused persons who were fixed to be present at the scene of the crime and participated actively in the commission of the crime”.

The issue now is whether the above finding of the learned trial judge is supported by the evidence on the record.

The only evidence led by the prosecution against the alibi raised by the Appellant came from the P.W.8. He told the court that when he interrogated Mrs. Oluyemisi Alake Ogunsakin who the Appellant said he was with the night of the incident, she made a statement denying that she was with the Appellant on the night of the incident. She gave evidence before the trial court as the D.W.3. In her oral testimony before the court, she stated that the Appellant came to her house on 14/8/2003 in the evening and was doing their dry cleaning job in the shop where they spent the night. She equally corroborated the Appellant that they spent the night of the 15/8/2003 doing their job. She then explained that some people whom she did not know were policemen accosted her in the market and asked her whether the two accused persons were with her on 9/8/2003 to which she answered in the affirmative. That the police only asked her of the 09/08/2003 and not 14th or 15th of August, 2003. She maintained her position under cross-examination that the police did not ask her about the 14th and 15th of August, 2003. As I stated earlier, the learned trial judge disbelieved her evidence and believed the P.W.8. The said P.W.8 had stated that D.W.3 made a statement denying that the Appellant was with her on the day of the incident. That statement is in evidence as Exhibit “B”.

It is now settled that it is not enough for a judge to state that he either believes or disbelieves a witness or witnesses. He must go further to state the basis of his belief or disbelief. In other words, he must support same with the facts as demonstrated before him at the trial. See BOZIN v THE STATE (1998) A.C.L.R., P.1. In the instant case, there is belief of the learned trial judge is not supported by the evidence on the date mentioned in the statement. I therefore hold that the statement supports the contention of the D.W.3 and has seriously debunked the testimony of the P.W.8 that the D.W.3 denied that the Appellant was with her on the day of the incident. Again, the record shows that the only investigation made by the police was to question the D.W.3 as to whether the Appellant was with her on the 9/08/2003, which is a date irrelevant to the date the offence was alleged to have been committed. There was therefore no investigation of the particulars of alibi given by the Appellatn relevant to the date of the robber charged. I therefore find and do hold that from the evidence of the record, the prosecution failed to investigate the alibi raised by the Appellant. The learned trial judge also failed to judiciously and judicially evaluate and or assess the evidence led on both sides on the defense of alibi raised by the Appellant. In the absence of other cogent and credible evidence fixing the Appellant to the scene of crime, it could be fatal to the prosecution’s case.

I wish to point out at this stage that though failure of the prosecution to investigate an alibi raised by an accused may be fatal to the prosecution’s case, it is not every failure of the police to investigate that will be fatal to the case of the prosecution. That is so because, there is nothing extraordinary or sacrosanct in a plea of alibi, which only postulates that the accused was elsewhere and so could not have been at the scene of the crime. The plea of alibi is not conclusive proof of the innocence of the accused, but only an inference that as he was elsewhere, he could not have been at the scene of crime. That inference or presumption may be rebutted by credible evidence fixing the accused to the scene of crime at the time of the incident. That being so, even if the prosecution fails to carry out her duty to check on the statement of alibi raised by an accused person and disprove same, they may yet prove their case by adducing sufficient credible and acceptable evidence which fixes or pins the accused person at the scene of the crime alleged and at the material time. If they are able to do that, the alibi so raised is thereby logically and materially demolished. See OCHEMAJE V. STATE (2008) 15 NWLR (PT.1109) P.57. As I had resolved that the prosecution did not investigate or properly investigate the alibi raised by the Appellant, the next issue now is to consider whether from the evidence adduced at the trial, there is indeed such evidence on the record fixing the Appellant at the scene of crime. That then brings me back to issue No.1 formulated for determination.

The issue No.1 as formulated is:-

Whether it was proper for the Trial Court to have held that by the evidence of identification before the court, or as available on Record, the Appellant was properly and rightly identified beyond reasonable doubt by the prosecution witnesses, as to dispense with any necessity to conduct identification parade and, or rely on evidence of alibi promptly set up by the Accused persons.

I had earlier on pointed out that this case and that in Appeal No.: CA/AE/43/C/2010 arose from the same facts and circumstances. The evidence of identity of the present Appellant and that in Appeal No: CA/AE/43/C/2010 are the same. The accused (Appellants) in the two appeals were tried together and thus the evidence of identity is interwoven. The witnesses are the same and the submissions of counsel on the issue of identity as can be seen from the Brief’s of Argument filed by counsel is the same, word for word. Incidentally, they are represented appeals by the same counsel. The issue of identity and the argument of counsel are therefore identical. That being so, I shall abridge the summation of the submissions of counsel on the issue in the instant appeal, having done so in greater detail in Appeal No: CA/AE/43/C/2010.

It suffices therefore to state at this stage that, Dr. Femi Jolaoso had contended that it is discernable from the record that there is a material contradiction, conflict and apparent inconsistencies in the evidence of P.W.1 and P.W.2 on the issue of identity. Those inconsistencies and or contradictions learned counsel pointed out are contained at pages 10 11 and 19 20 of the Appellant’s Brief of Argument and same has been summarized at page 21 of my judgment in: Appeal No: CA/AE/43/C/2010. I adopt same in this case. Learned counsel for the Appellant then submitted that the trial judge did not consider those contradictions or conflicts in the testimonies of those two witnesses before jumping into the erroneous or wrong conclusion, that there was no conflict and that the variation in their testimonies is not such as to create substantial discrepancy so as to create doubt in law.

It is therefore the submission of learned Appellant’s counsel that before a trial Court can attach credibility and probative value to evidence of a witness who has shown before the Court that prior to the incident or crime alleged, he had known the accused, he must disclose to the police at the earliest opportunity, the name of the suspect, the dress he wore at the time of the incident and what transpired between him and the suspect. That the only way the prosecution can establish such facts of recognition is by tendering the statement made by the witnesses to the police, so that same can be considered alongside the oral testimony of the witnesses in Court. The cases of R. vs. TURNBULL (1976) C.A.R., P.132; IKE V. THE STATE (1985) 16 N.S.C.C. (PT.1) P.561 AT P.572; BOZIN V. THE STATE (1985) 1 S.C. (PT.1) P.450 AT P.483 AND ABDULLAHI V. THE STATE (2008) 5 – 6 S.C. (PT.1) P.1 among other were cited in support. Relying further on the cases of OMOGODO V. THE STATE (1979 – 1981) 12 N.S.C.C. P.119; OPAYEMI V. THE STATE (1985) 10 N.S.C.C. (PT.11) P.919; ONAH V. THE STATE (1985) 16 N.S.C.C. (PT.II) P.1361, learned counsel submitted that, in the absence of any identification parade, the prosecution owed it a duty to have placed the statement of P.W.1 and P.W.2 side by side with their oral testimonies. That failure of the prosecution to tender in evidence the statements the two witnesses made to the police is fatal to the prosecution’s case. He accordingly urged us by citing the cases of OKUNZUA V. AMOSU (1992) 7 S.C.N.J. P.123 AT PP.261 – 262; OGUONZEE V. THE STATE (1998) 4 S.C.N.J. P.226 AT PP.251 0 252; OPAYEMI V. THE STATE (SUPRA) AT PP.183 – 185; ISAH V. THE STATE (2008) 4 – 5 SC. (PT.II) P.176 AT PP.183 – 185 AND THE STATE V. AZEEZ (2008) 4 S.C., P.188 AT P.252, to invoke Section 149(d) of the Evidence Act, cap. E.14, Laws of the Federation, 2004 against the Respondent, and to hold that failure of the prosecution to tender in evidence the statements of P.W.1 and P.W.2 is fatal, as if produced it, would have been unfavourable to the prosecution’s case.

Learned counsel for the Appellant further contended that it is not in doubt that the conviction of the Appellant by the learned trial judge was the purported identification or recognition of the Appellant by PW1 and PW2. That it is based on the said evidence of identification that the learned trial judge relied upon in rejecting the defence of alibi raised by the Appellant. That since there is doubt on the evidence of identification of the Appellant such doubt must be resolved in favour of the Appellant. The case of BOZIN V. THE STATE (SUPRA) AT PP.489 – 490; IFEANYI CHUKWU V. THE STATE (1996) 9 – 10 S.C.N.J, P.18 AT P.33; IBE V. THE STATE (1997) 1 S.C.N.J, P.256 at P.265 AND AZEEZ V. THE STATE (SUPRA) AT P.498 were also cited in support.

Learned counsel for the Respondent contended in response that, the above arguments of the Appellant are greatly misplaced. Relying on the cases of AMOSHIMA V THE STATE (2009t 32 W.R.N, P.49 at PP.53 AND 68 LINES 5 – 20 AND BALOGUN Vs A.G. OGUN STATE (2002) 19 W.R.N. P.1 learned counsel submitted that, an identification parade is basically conducted to enable an eye-witness to the commission of crime, who never knew the accused before; but had some degree of encounter with such person during the commission of the crime or at the scene of the crime charged, to pick him out from amongst other people in a line up. That in the instant case, the P.W.1 and P.W.2, and the Appellant knew each other for a very long time and the Appellant was adequately recognized and identified at the scene of crime, which competently rendered identification parade unnecessary. That the learned trial judge carefully and holistically observed and considered the principles on the evidence of identity as laid down in the case of AMOSHTMA V THE STATE (supra) at P.67 lines 15 – 30, before he arrived at his decision.

On the issue of contradictions, learned counsel for the Respondent relied on the case of DOMINIC PRICET & ORS V. THE STATE (2003) 7 W.R.N. P.54 to contend that, if there were any such contradictions in the testimonies of the witnesses, they are not material. He then submitted that for a contradiction to be fatal to the prosecution’s case, it must be material or substantial to the main issue in question before the trial Court. He further relied on the cases of AKPOVETA V. STATE (2008) 9 W.R.W., P.75 AT P.103 LINES 25 – 30 AND MUSA V. THE STATE (2009) 51 W.R.N. P.1 AT PP.6 – 7.

On the failure of the prosecution to tender in evidence the statements of P.W.1 and P.W.2, learned counsel for the Respondent submitted that Section 149(d) of the Evidence Act by the use of the word “May” is merely declaratory and not mandatory.

In the Appellant’s Reply Brief, it was contended by learned counsel that, the word “may” used in the main provision of section 149 of the Evidence Act is to be read as mandatory. That, the trial court had not discretion in the matter, but was under a duty or obligation to make the presumption in favour of the Appellant. The cases of IDIOK V. THE STATE (2008) ALL FWLR (PT.421) P.797; ABUBAKAR V. WASIRI (2008) ALL F.W.L.R. (PT.436) P.2025 AND ABUBAKAR V. JOSEPH (2008) ALL F.W.L.R. (PT.432) P.1065) P.1065 were cited in support.

Now, the Appellant in the instant case was not arrested at the scene of the crime. He was arrested on the 17/8/2003 in his house, which is about two days after the incident. Upon his arrest, he made a statement denying participating in the robbery and made a statement to the effect that he was not at the scene of crime, but at Emure-Ekiti in the night of the incident. However, the P.W.1 and P.W.2 stated in their oral testimonies at the trial Court that they recognized the Appellant as one the robbers that attacked them in the night of 15/8/2003. That being so, the identity of the Appellant as a participant in the robbery has been put in issue.

The law is that, where the case against an accused, such as in the instant case, depends wholly or substantially on the correctness of his identification which he alleges is mistaken, the Court has a bounden duty to closely examine the evidence led therein, so that if there are weaknesses discovered in such evidence which creates doubt in the mind of the Court, it must be resolved in favour of the accused. In other words, where the identity of an accused person is in issue, a trial court is enjoined to warn itself and meticulously examine the evidence adduced to see whether there are any weaknesses capable of endangering or rendering worthless any allegation that the accused was sufficiently identified or recognized by the witness or witnesses at the time of the commission of the offence charged as a participant. Even where the evidence of identity is that of recognition, a trial judge must warn itself and carefully examine the evidence led thereon. This is so because, mistakes are sometimes made even in recognition of close relatives and friends. See EBENEHI V STATE (2008) 10 NWLR (PT.1096) P.596; AGBI V. OGBEH (2005) 8 NWLR (PT.926) P.40; TANKO V. STATE (SUPRA); NDUKWE V. THE STATE (SUPRA) AND NDIDI V. STATE (2007) 13 NWLR (PT.1052) P.653. In that respect, a trial court must warn itself on the need for caution and to carefully weigh such evidence alongside other evidence adduced at the trial before convicting the accused thereon. See TANKO V. STATE (SUPRA) AT P.640; AGBI V. OGBEH (SUPRA) AT PP.119 – 120 PARAS H – C AND ARCHIBONG V. STATE (2006) 5 S.C., P.1 AT P.8.

The burden of proof in criminal proceeding rests on the prosecution, which they must discharge by leading substantial, cogent and credible evidence, which should emanate from a credible source, linking the Appellant to the commission of the offence charged.  Where the proof of culpability of the accused is hinged solely or substantially on the identification evidence led by the prosecution, such evidence must take into consideration the description of the accused given to the police immediately or shortly after the commissioner of the offence.  In ascribing probative value to the evidence of identity, courts are warned to guard against mistaken identity. As guide, the courts have been enjoined to take into consideration the following factors:

(a) The circumstances in which the eye-witness saw the suspect or accused;

(b) The length of time the witness saw the suspect;

(c) The lighting conditions;

(d) The opportunity of close observation; and

(e) The previous contacts between the suspect and the eyewitness.

See AMOSHIMA V. THE STATE (SUPRA) AT P.56 and NDIDI V. STATE (SUPRA) AT P.651 PARAS E – H; PER ADEREMI, JS.C.

In the instant case, the PW1 and PW2 are the eye-witnesses to the robbery incident. They gave oral testimony at the trial court as contained at pages 3 – 9 of the Record compiled by learned counsel for the Appellant, I do not agree with learned counsel for the Appellant that section 149(d) of the Evidence Act should be invoked against the Respondent for their failure to tender in evidence the statements made by the P.W.1 and P.W.2 to the police at the earliest opportunity. This is because, the law is that, it is not necessary for the prosecution to tender the statement made by a witness who is called to testify in the case, as such a statement(s) which was made by a witness called by a prosecution and relates to any matter on which the witness has given evidence, is not evidence of facts contained therein. The only way the defense can put it in evidence is to cross-examine the witness with a view to impeach his credit, and then put the extra-judicial statement in evidence for that purpose. Accordingly, there is no law that compels the prosecution to tender such extra-judicial statement in evidence at the trial. The duty lies on the defense counsel to formally request for the production of the statement of the prosecution witnesses if he perceives same to be of assistance in the prosecution of the defence. Where he fails to make such a request or cross-examine at the trial with a view to tendering such a statement for the purpose of impeaching the credibility of the witnesses, he cannot complain and push the blame on the prosecution for his blunder or inadvertence. The learned defence counsel failed to do so at the trial, and this court cannot come to his aid by invoking section 149(d) of the Evidence Act against the prosecution. In any case, section 149(d) of the Evidence Act is concerned with withholding evidence and not with failure of a party to call a particular witness or tender a particular document. See Sections 199 and 209 of the Evidence Act and the cases of LAYONU & ORS V. STATE (2003) 3 A.C.L.R. P.181 and NDIDI V. STATE (SUPRA) AT P.17. In the instant case, it cannot be said that the prosecution had withheld evidence as to require the invocation of Section 149(d) of the Evidence Act against them.

Now, I have carefully perused the oral testimonies of the P.W.1 and P.W.2 as contained at pages 3 – 9 of the Record. A careful perusal would show that, the P.W.1 in her testimony stated that, when she came out of her room, she was holding a lantern, and the robbers took it from her and started to beat her. That her children, which include the PW2 came back from where they had ran to, and the robbers immediately shot at them on sighting them. That as a result, one of her sons was shot and he ran out while the P.W.2 was also shot and wounded in the leg. That her husband later came and lighted his torchlight on the faces of the robbers, and that is how she was able to see the faces of the robbers whom she recognized as the Appellant and the co-accused. Though she stated that the robbers were holding a rechargeable lamp and a torchlight, she did not state the lighting condition of the environment since the robbery took place in the depth of the night. She did not also say that she was able to recognize the robbers through the light exuded by the lamp; that is if the lamp was lighted at the time. The crucial statement made by the PW1 is that it was when her husband shined his touchlight on their faces that she was able to recognize them. That shows clearly that the scene of the incident was not bright enough for her to have recognized her assailants until when her husband lighted his torchlight. She however stated under cross-examination that one of the accused persons was wearing a mask on his face but did not mention which of them did not cover his face with a mask. She did not also state how she was able to recognize that other person whose face was covered with a mask.

The PW2 gave a completely different picture of the circumstance under which he was able to recognize the suspects, one of whom he said was the Appellant. He said that he was carrying a rechargeable lamp when he got to the scene and that the suspects were carrying a three batteries torchlight and a rechargeable lamp, so the place was as bright as the afternoon, as started by the PW2, certainly there would have been no need for their father to light his torchlight on the faces of the suspects. I therefore find that from the evidence on the record there is a serious, substantial and material contradiction or conflict between the testimonies of P.W.1 and P.W.2 on the lighting condition of the scene of robbery.

As I stated earlier, the P.W.1 had stated that one of the robbers had covered his face with a mask. She stated this under cross-examination. However when cross-examined, the P.W.2 stated that when he saw the suspects, none of them had a mask on hisface. Those contradictions, in my view, are material and have definitely created a doubt in my mind as to whether indeed the P.W.1 and P.W.2 saw the Appellant as one of the persons that robbed them on the 15/8/2003. The learned trial judge ignored those serious and material contradictions, describing them simply as evidence of the witnesses as “to different stages of the operation” and that none of the witnesses contradicted the other. Thus, in the absence of any other evidence outside the testimonies of the P.W.1 and P.W.2, I will be reluctant to believe the evidence adduced by the prosecution that the Appellant and his co-accused were identified, recognized and or fixed to the scene of crime.

Having found as above, I am of the view that the testimonies of the P.W.1 and P.W.2 on the issue of identification fell below the requirement of the law. The P.W.1 only stated that she recognized the accused persons when her husband lighted his torchlight on their faces and that she was calling the names of Rasaki and Idowu that night. That is even when she had stated that one of the robbers covered his face with a mask. There is no evidence that either the P.W.1 and P.W.2 mentioned the name of the Appellant whom they knew and his place of abode to the police immediately after the incident. They did not report the matter to the police. Indeed, the P.W.2 stated that it was one Baba Alhaji that reported the incident to the police that night. Alas, the said Baba Alhaji was not called as a witness. The P.W.8 who said he investigated the case only stated that he took statements from the complainant, but did not mention who the complainant was and no person gave evidence on the record that he was the complainant or that he reported the matter to the police. Unfortunately, the P.W.8 as shown on the record did not conclude his testimony and so was never cross-examined on this issue. Similarly, the P’W.2 stated that he saw the Appellant during the robbery operation. It is also doubtful whether he, mentioned the Appellant to the police at the earliest given opportunity. This is because, he had admitted under cross-examination that he made two statements to the police on the 16/8/2003 and 17/8/2003, and that the two statements were inconsistent with each other. Though he tried to explain the inconsistencies in the two statements, there are other factors in this case that makes his explanation doubtful. That is especially in view of the existing sour relationship between the Appellant and the family of the P.W.1 and P.W.2. On the whole therefore, I resolve issue No.1 in favour of the Appellant.

The third (3rd) issue for determine in this appeal is:

Whether from the totality of the evidence before the Trial court as adduced by the prosecution witnesses, the Evidence of P.W.1 and P.W.2 is tainted by the hitherto existent malice between the family of the alleged victims of the Armed Robbery and the 1st Accused/Appellant since 1994 till date of the alleged offence herein.

In arguing this issue, Dr. Femi Jolaoso of learned counsel defined the term “tainted witness” as judicially pronounced in the cases of ISHOLA V. THE STATE (1978) 11 S.C. P.499 AT P.509; OGUUONZEE V. THE STATE (1998) 4 S.C.N.J., P.226 AT P.255; OMOTOLA V. THE STATE (2001) 12 S.C. (PT.1) P.38 AT P.55 AND NDUKWE V. THE STATE (SUPRA) AT P.152 among others. He went on to submit that, evidence of a person whose evidence has a purpose of his own to serve must be treated with caution and be examined with tooth comb. That, there is uncontroverted evidence on the record that there had been malice between the Appellant and the father of his former wife, who is husband and father to the P.W.1 and PW.2 respectively. That the said father-in-law (Alhaji Musa Sunmonu) had written a petition to the police which led to the arrest and detention of the Appellant before investigation exonerated him. That the said Alhaji Musa was very active in pursuing the matter at the police station by writing petition against any person who tried to assist the Appellant. Learned counsel then submitted that the learned trial judge did not allow himself to be guided by the principles of law enunciated in the cases cited above in the receipt of and reliance on the evidence of P.W.1 and P.W.2 before according credibility and probative value to their evidence. The cases of OGUNLANA V. THE STATE (1995) 5 S.C.N.J, P.189 AT P.202; OLALEKAN V. THE STATE (2001) 12 S.C. (PT.1) P.38 AT P.55 AND NDUKWE V. THE STATE (SUPRA) AT P.77 were cited in support.

On this issue, it is also the contention of learned counsel for the Appellant that P.w.1 and P.W.2 who are blood relations of the deceased (Mustapha Sunmonu) are interested parties in the matter, and as such their evidence would have a purpose to serve, being evidence out of malice from persons bereaved, and who would ensure the conviction of any person tried for the robbery and death of their deceased son and brother. Learned counsel then urged us to resolve this issue in favour of the Appellant.

It is the submission of the Respondent on this issue that, P.W.1 and P.W.2 are victims of the robbery and that they gave direct and cogent evidence of the identity and participation of the accused persons in the alleged robbery. That raising the issue of malice on events of 1994 is an after-though and whipping up of sentiments to the Appellant. That in view of the over-whelming evidence against the Appellant, this charge was never based or activated by malice.

Now, it is beyond doubt on the record that the P.W.1 and P.W.2 are blood relations of Mustapha Sunmonu who died from the injury he sustained during the robbery. The P.W.1 is mother to the deceased, while P.W.2 is his brother. It is the law that blood relationship with a deceased person does not make such a blood relation who testifies in the matter a tainted witness. Such a person is a competent witness in a case involving the murder of such deceased person. It therefore means that, the mere fact of the relationship of a witness with the victim of the offence does not affect the probative value of the testimony of such a witness. See YAHAYA V. THE STATE (2005) 1 N.C.C., P.120; BEN V. THE STATE (2007) 2 N.C.C, P.55 and OMOTOLA V. THE STATE (2009) 4 N.C.C., P.89. All that is required of a trial Court in such a circumstance, is to warn itself of the veracity of the testimony of that witness. The same principle applies even when the witness is sworn enemy of the accused. Even when the trial court fails to warn itself of the dangers of the evidence of such a witness, it will not ipso factor affect a conviction based on the evidence of such a witness. In the instant case, the PW1 and P.W.2., apart from blood relations of the person who died in the robbery, were also victims of the robber. It should also be noted that the charge for the murder of the said deceased was dropped, and the Appellant only tried for the conspiracy and armed robbery. Though P.W1. and P.W2 might have had the death of their relation at the back of their mind while testifying, the fact still remains that they were also victims of the armed robbery. It is therefore preposterous to simply brand them as tainted witnesses whose testimony needed corroboration, Once their testimonies were direct, positive and credible, it needed no corroboration. See OKOSI V THE STATE (1989) 2 S.C. (PT.1) P.126 AT 141 and OLAYINKA V. THE STATE (2007) 2 N.C.C., P.505. I am therefore of the view that in the absence of any evidence on the record, the credibility of P.W.1 and P.W.2 could not be impinged on the ground of their relationship to the deceased Mustapha Sunmonu, since they were also victims of the robbery incident.

On the existing animosity between the Appellant and the family of the P.W.1 and P,W.2, I wish to point out that, though the existence of a grouse or other unhappy physical or personal relationship between an accused and a witness may not affect the credibility of such witness, the existence of such a grouse Or settling scores should place a trial Court at its guard. The trial Court is therefore to warn itself as to the credibility of the evidence of such a witness before convicting thereon. In the instant case, there is evidence that Alhaji Musa Sunmonu had in 1994 made a complaint against the Appellant which led to the arrest and detention of the Appellant until investigation exonerated him. It would appear that, the animosity between the said Alhaji Sunmonu who is the family head of P.W.1 and P.W.2 did not end there. The Appellant and his co-accused (D.W.2) gave evidence before the trial Court that the said Alhaji Sunmonu was very active during the arrest and detention of the Appellants. He ensured that the Appellant was kept in detention throughout the period of investigation by writing petitions against anyone who tried to help him, including the co-accused. This piece of evidence was neither challenged nor controverted by the prosecution. Indeed, the P.W.2 gave insight into the continued existence of that animosity when he stated under cross-examination at page 9 lines 4 – 7 as follows:-

“My family reported the 1st Accused person to the police and he was arrested then, I don’t know whether the 1st Accused was charged to Court. On this occasion this allegation was not false as I know him very well. The fact that I have been knowing the 1st accused so much made his (sic) to want to kill me. A heartless person can kill people like chicken”.

It is therefore my view that if the learned trial judge had considered the uncontroverted evidence on the previous animosity between the Appellant and the family of the P.W.1 and P.W.2, it would have put him on his guard as to the reliability and veracity of the evidence of P.W.1 and P.W.2 on the identity of the Appellant as one of the culprits to the robbery. It should have been strange to the trial judge that the Appellant would be bold enough bearing in mind the long standing relationship between him and the P.W.1 and P.W.2, to appear in their house unmasked and in a very bright light to rob them. Surely, even an amateur robber would be wary of such fool-hardiness. I therefore resolve issue No.3 in favour of the Appellant.

The fourth (4th) issue that arose for determination in this appeal is:

Whether from the totality of the evidence before the trial court, the prosecution had fully proved beyond reasonable doubt the essential and indispensable ingredients of the offences of conspiracy to commit Armed Robbery, and the principal offence of Armed Robbery as alleged or charged.

On the issue of conspiracy, learned counsel for the Appellant relied on the cases of conspiracy to commit Armed Robbery, and the principal offence of Armed Robbery as alleged or charged.

On the issue of conspiracy, learned counsel for the Appellant relied on the cases of IKEMSON V. THE STATE (1989) 3 NWLR (PT.110) P.455 AT P.477; ERIM V. THE STATE (1994) 6 SCNJ, P.104 AT P.115; AMINU V. THE STATE (2005) ALL FWLR (PT.224) P.933 AT PP.946 – 947 among others to contend that the gist of conspiracy is embedded in the agreement between the parties, and is rarely capable of direct proof. That it is an offence that is deducible by inference from the acts of the parties thereto which are focused towards the realization of their common criminal purpose. Learned counsel then submitted that, contrary to the learned trial judge’s decision or holding at pages 44 – 45 of the judgment, there was never a review, finding or appraisal of the evidence on the count of conspiracy at all as shown by the review of the entire ten issues formulated for determination of the learned trial judge. That indeed, no issue was formulated and discussed by the learned trial judge in respect of the count of conspiracy. He accordingly urged us to resolve this issue in favour of the Appellant.

On the count of armed robbery, the Appellant submitted that for the prosecution to succeed in a charge of armed robbery, they must prove beyond reasonable doubt that:

(a) There was armed robbery or series of armed robberies;

(b) Each of the robbery was an armed robbery; and

(c) The accused person/Appellant was one of those who took part in the armed robbery.

He cited in support the cases of BOZIN v. THE STATE (1985) 2 NWLR (PT.8) P.465 AT P.469; TAJUDEEN ALABI V. THE STATE (1993) 9 SCNJ (Pt.1) P.109 AT P.118, to submit that all those essential ingredients must be proved beyond reasonable doubt, and that where any of those ingredients is lacking in proof, the prosecution would have failed to prove the case against the accused beyond reasonable doubt, and the accused shall be entitled to discharge and acquittal. The cases of ALONGE V. I.G.P. (1950) 4 F.S.C., P.203 and BAKARE V. THE STATE (1987) 3 S.C. P.1 were also cited in support. Learned counsel then submitted that from the review of the totality of the evidence before the trial Court, it is clear that the 1st and 2nd ingredients of the offence of armed robbery have been proved, but that the 3rd element has not been proved beyond reasonable doubt. He then submitted that since the 3rd ingredient has not been proved beyond reasonable doubt, the trial Court ought to have returned a verdict of discharge and acquittal. That this Court can therefore reverse such perverse finding. He accordingly urged us to resolve this issue in favour of the Appellant.

On this issue, learned counsel for the Respondent restated the elements to be proved in a charge of armed robbery as enunciated in the cases of EBENENIWA V. THE STATE (2009) 1 WRN, P.67 and ISIBOR V. THE STATE (2001) FWLR (PT.78) P.1077 AT P.1083, to submit that the duty placed on the prosecution is to prove the guilt of the accused beyond reasonable doubt. He contended that, there is no controversy that there was an armed robbery on the 15/8/2003 at Ise-Ekiti and the robbery was an armed robbery and that the involvement of the Appellant in the armed robbery is not in doubt as he was cogently and unequivocally fixed and pinned to the scene of the crime as a perpetrator of the alleged offence.

On the charge of conspiracy, it was submitted by learned counsel for the Respondent that, conspiracy can be inferred from the proof of the substantive offence. That direct evidence is not indispensable and therefore it is open to the trial Court to infer complicity from the fact of things done towards a common end. The case of EMENEGOR V. THE STATE (2009) 31 W.R.W. P.66 at P.75 was cited in support. It was then submitted that the record show grounds for believing the existence of a conspiracy as the prosecution has proved that the Appellant entered into an agreement with the co-accused to commit armed robbery, as a result of which he entered the apartment of P.W.1 and P.W.2 and carried out the dastardly and illegal act.

It is also the submission of learned counsel for the Respondent that, it is not within the province of an appellate Court to interfere with the findings of facts of a trial Court which had the opportunity of hearing and watching the demeanor of witnesses, except, where the trial court failed to properly evaluate the evidence or make proper use of the opportunity of seeing and hearing the witnesses or where its findings are shown to be perverse. He then cited the cases of EMENEGOR V. STATE (Supra) and ATIKU V. STATE (2002) 4 N.W.L.R. (Pt.757) p.265 at PP.278 – 279 to submit that the prosecution had established beyond reasonable doubt the offences charged against the Appellant and that it has not been shown that those findings are perverse.

In reply, learned counsel for the Appellant contended that, the trial Court failed to properly evaluate the evidence before it, in that it failed to observe and appreciate the material contradictions in the evidence of P.W.1 and P.W.2 on the evidence of recognition. That failure of the trial Court to consider and appreciate the testimonies of the prosecution and defense witnesses resulted in wrong, erroneous and perverse findings which resulted in a miscarriage of justice. The cases of ABDULLAHI V. THE STATE (2008) ALL FWLR (PT.432) P.1047 AT P.1049; SOKWO V. KPOGBO (2008) 1 – 2 S.C., P.117 AT PP.130 – 131 AND 139 – 140; AND IWUOHA V. NIPOST (2003) 4 SCNJ P.258 AT P.284 among others were cited in support. He then urged us to disturb, interfere and reverse the perverse findings of the trial Court, and set aside the findings, conviction and sentence passed on the Appellant.

Now, the law is that, it is within the judicial role of a trial judge to hear and evaluate evidence, with a view to either believe or disbelieve the witnesses called at the trial, and to make findings of fact based on the credibility of such witnesses, and to decide the merit of the case based of such findings. An appellate Court does not have such advantage of seeing and hearing the witnesses. It is therefore the prerogative of a trial judge who sees and hears the witnesses to choose which to believe and ascribe probative value to such evidence either oral or documentary. A trial court being the master of the fats, must base his inferences, evaluation or assessment and findings on the available evidence adduced before him. His findings must not be premised on extraneous facts outside the evidence given at the trial. See AKINBISADE V. STATE (2007) 2 NCC, P.76; ABEKE V. STATE (2007) 2 N.C.C., P.451 AND STATE V. AIBANGBE (2007) 2 N.C.C., P.648. Once a trial Court has properly evaluated and made correct findings on the evidence led before him, an appellate court will be reluctant to disturb such findings unless such findings are shown to be erroneous or perverse, where such findings are shown to be erroneous or perverse, an appellate court has the power or vires to deduce or reassess those findings of the trial Court as borne out by the record. See ANYEGWU v. ONUCHE (2009) 3 NWLR (PT.1129) P.659; AKINFE V. U.B.A. PLC (2007) 10 NWLR (PT.1041) P.186 and LAGGA V. SARHUNA (2008) 6 NWLR (PT.1114) P.427. It is the duty of the Appellant to show that the findings of the trial court are perverse.

I have carefully perused the submissions of counsel and the authorities cited by them. I wish to restate that in an accusational system of administration of justice as practiced in this country, the general burden of proof lies always on the person who alleges. In criminal trials, the general or legal burden of proof lies on the prosecution and does not shift, to prove the guilt of the accused person. This legal burden is supported by section 36(5) of the 1999 constitution of the Federal Republic of Nigeria, which guarantees to all persons accused or charged with a criminal offence, the right to be presumed innocent until proved guilty. This burden, the prosecution must discharge beyond reasonable doubt, by proving every ingredient of the offence charged by credible evidence which also rebuts any defense raised by the defense, See Section 135 and 138 of the Evidence Act. See also MUSTAPHA V. STATE (2007) 12 NWLR (Pt.1049) P.637; CHUKWU V. STATE (2007) 12 NWLR (PT.1052) P.430 AND ABDULLAHI V. STATE (2008) 17 NWLR (PT.1115) P.203. Where at the close of evidence an essential elements of the offence charged has not been proved, a doubt would have been created as to the guilt of the accused, and he shall be entitled to a discharge and acquittal.

In the instant case, the Appellant and his co-accused were convicted on the two counts of conspiracy to commit armed robbery and armed robbery respectively.In a charge of armed robbery, for the prosecution to succeed, they have to prove the following ingredients of the offence beyond reasonable doubt:

(a) That there was a robbery or series of robberies;

(b) That each of the robberies was an armed robbery; and

(c) That the Appellant was one of the robbers.

See BELLO v. STATE (2007) 10 NWLR (Pt.1043) P.564; ISIBOR v. STATE (2001) FWLR (PT.78) P.1077 and JOSHUA V. STATE (2010) 1 W.R.N. P.41.

From the evidence on the record and especially the testimonies of the P.W.1 and P.W.2, it is not in doubt that there was an armed robbery in the residence of the P.W.1 and P.W.2 at No.41, Ireke Street, Ise-Ekiti in the midnight of 15/8/2003. It was also proved that the robbery was an armed robbery as in the process one Mustapha Sunmonu died as a result of gunshot wounds he sustained during the robbery, while the P.W.2 sustained fracture on his leg from gunshots he sustained from the robbers. Indeed, both counsel agreed on those facts. The only contention is whether the prosecution proved beyond reasonable doubt that the Appellant was identified as one of the robbers that robbed the P.W.1 and P.W.2 on the 15/8/2003. I had earlier resolved the issue of identification evidence of the Appellant led by the prosecution at the trial while dealing with issue one(1) formulated for determination in this appeal. Therein, I found that there are material contradictions or conflict between the testimonies of PW1 and PW2 on the identity of the Appellant. I also found that from the evidence on the record, there is doubt as to whether those witnesses did mention the Appellant to the police at the earliest opportunity. There is also the uncontradicted and uncontroverted evidence of the DW2 and DW3 that the Appellant was with them at Emure-Ekiti in the night of the robbery.

Now, the evidence on the record shows that all those contradictions and conflicts were not properly assessed and or evaluated by the learned trial judge. I am of the view that, if the learned trial judge had carefully assessed and weighed those facts, doubt(s) would have been created in his mind about the identification of the Appellant as one of the robbers that took part in the robbery charged. It is therefore my view and I do hold that the finding of the learned trial judge on the robbery charge is erroneous. This is because, if the learned trial judge had carefully evaluated and weighed the totality of the evidence led at the trial, it would have been clear to him that the prosecution did not prove that the Appellant was properly identified as one of the robbers that robbed the PW1 and PW2 on the 15/8/2003. I accordingly hold that the totality of the evidence adduced by the prosecution on the identity of the Appellant in the commission of the offence charged fell below the standard required by law, and therefore cannot support the conviction and sentence passed on the Appellant for the armed robbery charged.

On the charge of conspiracy, it is clear from the entire judgment of the trial court that the learned judge did not make a single finding on the charge of conspiracy. Indeed, of the numerous issues formulated by the learned trial judge for determination, none touched on the conspiracy charge. Yet, without assessing the evidence on the conspiracy charge, the learned trial judge held that the prosecution has been able to prove the conspiracy charge. He then proceeded to convict and sentence the Appellant thereon to death. If this is not a perverse decision, nothing else can be. This court therefore has the power to evaluate the evidence to see if the evidence led, as borne out of the record can support a conviction on the charge of conspiracy.

The law on conspiracy has been sufficiently discussed by learned counsel for the Appellant at pages 50 – 52 of the Appellant’s Brief of Argument. I only wish to add that conspiracy is generally proved by inference deduced from the criminal acts of the culprits, done in the pursuant of the criminal or illegal purpose common to the conspirators. It is also pertinent here to point out that, proof of the actual agreement which is the hub or essential elements of the crime is not always easy to establish, since the agreement is almost always shrouded is secrecy. That being so, the facts of each particular case will determine whether or not a charge of conspiracy has been proved. See TANKO V. STATE (2008) 16 NWLR (PT.1114) P.591 and OMOTOLA V. STATE (2009) 4 N.C.C., P.89.

In the instant case, the Appellant was charged along with one Adebayo Idowu, who is the Appellant in Appeal No: CA/AE/43/C/2010, with the conspiracy to commit a felony, to wit: armed robbery. The general principle of law is that an accused person may not be convicted of conspiracy if he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. The only exception is where the accused has admitted or confessed the conspiracy and or there are other evidence to sustain the conspiracy charge. However, where an accused has been charged for committing the offence of conspiracy simpliciter along with other substantive offence, he may still be convicted of the conspiracy even when the substantive offence is not proved. Where he is charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive offence, if he is acquitted of the substantive offence. See ABIOYE V. THE STATE (1987) 7 NWLR (PT.58) P.645; AMADI V. STATE (1993) 8 NWLR (PT.313) P.664 AT P.677 AND OLADEJO V. THE STATE 91994) 6 NWLR (PT.348) P.101 AT P.127.

The charge of conspiracy in the instant case is that, the Appellant and one Adebayo ldowu “conspired together” to commit a felony, to wit: armed robbery. The evidence led at the trial in proof of the conspiracy is intricately connected to the evidence in proof of the charge of the substantive offence of armed robbery. There is no iota of evidence on the record in proof of the conspiracy distinct from that in proof of the robbery charge. There is no evidence on the record which suggests or tend to lead to the inference that the Appellant entered into an agreement with the said Adebayo Idowu to commit armed robbery. In other words; there is no circumstance from the evidence led upon which the existence of the conspiracy could be inferred. The charge of armed robbery has not been established and the Appellants did not confess to the existence of such conspiracy. It is therefore my view and finding that the finding and conclusion of the trial Court on the conspiracy charge cannot be sustained. I accordingly hold that the charge of conspiracy has also not been proved beyond reasonable doubt.

On the whole, I am of the firm view that the prosecution failed to establish the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt. I accordingly hold that for the reasons Stated in this judgment, this appeal is meritorious. It is hereby allowed by me. The judgment of C. I. Akintayo; J. of the Ekiti State High Court in Suit No: HAD/3C/2004 is hereby set aside. The conviction and sentence passed on the Appellant on the 29/6/2007 by the Court below is hereby set aside. The Appellant is accordingly discharged and acquitted on both counts of conspiracy to commit armed robbery and armed robbery.

UWANI M. ABBA AJI, J.C.A.: I have had the benefit of reading before now the judgment of my learned brother H. M. Tsammani, J.C.A., just delivered. My learned brother has comprehensively considered and satisfactorily resolved all the issues raised for the determination of the appeal.

I agree with his reasoning and conclusion that the appeal has merit and ought to be allowed. I also find merit in the appeal. It is hereby allowed.

The judgment of the trial court convicting un1 sentencing the Appellant to death for conspiracy and commission of armed robbery delivered on the 26th June, 2007 is hereby set aside. I also enter an order of discharge and acquittal on both counts of conspiracy to commit armed robbery and robbery respectively.

CHIDI NWAOMA UWA, J.CA.: I have the privilege of reading in advance the judgment just delivered by my learned brother Haruna M. Tsammani, J.C.A.

His Lordship has resolved the issues raised in great detail, I agree with his reasoning and conclusion arrived at in setting aside the conviction and sentence of the appellant in the trial court and instead enter the order of discharge and acquittal on both counts of conspiracy to commit armed robbery and armed robbery.