3PLR – ESENE V. THE STATE

Published by Law Nigeria Admin at July 15, 2019

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EHIMEN ESENE

V

THE STATE

SUPREME COURT OF NIGERIA

FRIDAY, 10 MARCH 2017

SC.322/2013

BEFORE THEIR LORDSHIP

OLABODE RHODES-VIVOUR JSC (Presided)

MUSA DATTIJO MUHAMMAD JSC

CLARA BATA OGUNBIYI JSC (Read the Lead Judgment)

CHIMA CENTUS NWEZE JSC

AMIRU SANUSI JSC

BETWEEN

EHIMEN ESENE

AND

THE STATE

MAIN JUDGMENT

OGUNBIYI JSC (Delivering the Lead Judgment): This is an appeal against the judgment of the Court of Appeal, Benin Division, in criminal appeal No. CA/B/374C/2010, delivered on 28 May 2013 by which said judgment, the court affirmed the conviction and death sentence passed on the appellant by the High Court of Edo State, sitting at Benin City.

Dissatisfied with the judgment of the Court of Appeal, the appellant appealed against same to this court vide a notice of appeal dated and filed the same day on 12 June 2013 and raising two grounds of appeal.

Summary of the facts:

The facts of this case as may be gleaned from the evidence on record are that on 23 December 2006, the PW1 (one Franca Okuonurie) whilst returning from Abuja was dropped off by the bus she was travelling in AP junction, Irrua. Whilst at the junction, the appellant – a commercial motorcyclist rider approached PW1 and offered to give her a ride on his motor bike to Obedu 1 at a fare of N300.00. PW1 and the appellant eventually settled for N200.00.

In the course of their journey, PW1 asked the appellant to take Akho junction into Irrua, a request which the appellant turned down on the basis that there were policemen at the junction. So, the appellant took Agric Road instead. The appellant went past Agric junction and headed into the bush, where the appellant asked PW1 to come down. Thereafter, the appellant beat her and asked her to give him all that she had; otherwise he (appellant) would stab her with the knife he was holding.

The appellant, after forcefully removing the weave on from PW1’s head, gave her a bite on her left breast as a result of which she fainted and stayed in the bush all through the night.

The appellant robbed PW1 of the items she was carrying: a bag of rice, bag of salt, cloths, meat, necklace, wrist watch, shoes and the sum of N42,000.00 cash given to her by her brother in respect of the house he was building.

PW1’s brother returned from Lagos on 26 December 2006. The next day that is 27 December 2006, they (PW1) and her brother) decided to report the incident to the police. On their way to the police station, somewhere around Akho junction, PW1 saw and identified the appellant as the person, who robbed her on the night of 23 December 2006. As soon as the appellant saw PW1, he started to run with his motorbike whereupon PW1 and her brother gave him a chase. They saw the appellant enter a particular building. PW1 and her brother then went and invited policemen. As PW1, her brother and the policemen were coming back to the building where the appellant had run into, the appellant who saw them again ran into a mechanic workshop where the policemen arrested him.

The appellant was initially taken to Irrua Police Station and after investigation he was arraigned before a Magistrates’ Court for stealing and assault occasioning harm. At the commencement of trial, after going through the facts, the trial magistrate ordered that the matter be further investigated as there were elements of violence in the case.

The case was then transferred to the Anti-Robbery Section of the State CID, Benin City, for that purpose. At the conclusion of investigation, the appellant was charged on information before the Edo State High Court, sitting in Benin City, where the matter was tried and concluded.

At the trial, apart from the PW1, three other prosecution witnesses (PWs 2, 3 and 4) testified for the prosecution. They were: Mr. Cletus Okuonurie, PW1’s elder brother (PW2), Kemi Cyril Abudu, the policeman who investigated the matter when it was incidented at Irrua Police station (PW3), and Mr. Victor Ernest, a police sergeant, attached to the State CID, Benin City (PW4).

The appellant testified in his own defence and called no witness. His case was a complete denial of his involvement in the armed robbery of the PW1. In his trial, the appellant raised the defence of alibi to the effect that at the time of incident (9 p.m) he was in his house. Meanwhile, he did not raised this defence in his two statements to the police which were admitted in evidence as exhibits P1 and P2 at pages 33 to 34 and 19 to 22 of the records of appeal, respectively.

The trial court in its considered judgment delivered on 2 June 2010 convicted and sentenced the appellant to death as charged.

His appeal to the Court of Appeal was unsuccessful and dismissed while the trial court’s judgment was upheld. Hence the appeal now before us.

In compliance with the rules of court, briefs were exchanged by the parties. The appellant’s brief was settled by one Emmanuel O. Achukwu of counsel and filed on 18 September 2013.

The respondent’s brief of argument was however settled by one Adewale Atake Esq and filed on 14 November 2013.

On 15 December 2016 when the appeal was heard, the counsel, Mr. Emmanuel Achukwu, represented the appellant and Godwin Omoaka Esq appeared for the respondent. Both learned counsel, adopted and relied on their respective brief of argument.

While the counsel for the appellant urged that the appeal be allowed, a dismissal was sought for by the respondent.

For the determination of this appeal, the lone issue raised on behalf of the appellant from the two grounds of appeal is as follows:

Whether the Court of Appeal was right in affirming the decision of the trial court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.

The foregoing issue was adopted also by the respondent.

Submitting to substantiate his argument, the appellant’s counsel related copiously to the settled law which restates the standard of proof in criminal cases which learned counsel argues, is proof beyond reasonable doubt; also that the onus of proof of the guilt of the accused person rests squarely on the prosecution.

The onus, counsel argues, is static and does not shift. Counsel cites the case of Ikemson v. State (1985) 1 NWLR (Pt. 2) 378.

It is clear on the record, counsel argues, that the trial court relied solely on the evidence of PW1 in finding that the alleged incident that occurred on the night of 23 December 2006, amounted to an armed robbery. This finding, he restates, was affirmed by the Court of Appeal. Copious reference was made to the witness PW1’s evidence, which learned counsel argues, is not reliable; that the prosecution failed to prove an essential ingredient of the offence wherein it did not tender in evidence, the weapon allegedly used in the attack or at least furnished good explanation as to why it could not do so.

It is the submission of counsel further that, the evidence of PW1, given all the surrounding circumstances, could not have been sufficient, credible and probable to have warranted the finding that the appellant was properly identified by PW1, as the assailant who robbed her. The counsel drew reference to the case of Ochiba v. State (2011) 17 NWLR (Pt 1277) 663 at pages 694-695, (2012) All FWLR (Pt. 608) 849 wherein this court stated the principles that should guide the court when dealing with evidence of identification.

As a matter of fact, counsel submits that the appellant gave unchallenged evidence that he was somewhere else at the material time. Counsel cites the case of Abudu v. State (1985) 1 NWLR (Pt. 1) 55, (1985) 16 NSCC (Pt. I) 78, where it was held that when the sole defence is an alibi, great care must be taken in relying on identification by a single witness and the facts of such identification must be carefully dealt with in the summing up.

In summary, it is the submission by the appellant’s counsel that the prosecution failed to prove every essential ingredients of the offence for which the appellant was convicted to wit: that the alleged robbery was carried out with the use of offensive weapon and that the appellant participated in the robbery. This, the learned counsel argues, is because the only evidence upon which the appellant was convicted, (is the testimony of PW1, being the prosecutor’s star witness), which is manifestly unreliable and should be viewed by the court with great caution; this is given that she was the victim of the alleged robbery and desired to revenge at any cost.

It is the submission of learned counsel further that the evidence of identification of the appellant by PW1, as has been demonstrated herein before, is fundamentally flawed and could not be safely relied upon. That the totality of the foregoing is to cast doubt seriously on the case of the prosecution and the doubt which ought to be resolved in favour of the appellant.

Counsel cites the case of Queen v. Obiasa (1962) 1 All NLR 651, (1962) 1 SCNLR 137, wherein it was held that any doubt arising in a criminal matter must be resolved in favour of the accused. Again, see the case of Shehu v. State (2010) All FWLR (Pt. 523) 1841, (2010) 8 NWLR (Pt. 1195) 112 at page 141; also Almu v. State (2009) 10 NWLR (Pt. 1148) 31 at pages 50 and 53, (2009) 4 NSCC 266.

A further authority of Kalu v. State (1988) 4 NWLR (Pt. 90) 503, (1988) 10-11 SCNJ 1 was also cited in support. The 2017 learned counsel solicits for the acquital and discharge of the appellant in the circumstance of the case therefore.

The counsel urges that the sole issue be resolved in favour of the appellant, who in the circumstance should be acquitted and discharged.

In his submission in response to the appellant, the learned counsel for the respondent applauded the lower court in affirming the decision of the trial court in convicting the appellant of the offence of armed robbery and sentencing him to death by hanging

This is contrary to the contention held by the appellant’s counsel, that the prosecution did prove the guilt of the appellant beyond reasonable doubt. Reliance was made on the case of Moses Jua v. State (2010) All FWLR (Pt. 521) 1427, (2010) 4 NWLR (Pt. 1184) 217.

The learned counsel concedes to the argument by the appellant’s counsel on the necessary ingredients of the offence of armed robbery which the respondent is expected to prove beyond reasonable doubt as specified in the case of Awosika v. State (2010) 9 NWLR (Pt. 1198) 49 at pages 71-73, (2011) All FWLR (Pt. 560) 1237.

On the question of proof beyond reasonable doubt, the learned counsel related to the evidence of PW1 which counsel qualified as very vivid, graphic and unchallenged during trial Awosika v. State (2010) 9 NWLR (Pt. 1198) 49 at pages 71-73, (2011) All FWLR (Pt. 560) 1237.

On the question of proof beyond reasonable doubt, the learned counsel related to the evidence of PW1 which counsel qualified as very vivid, graphic and unchallenged during trial in support of the fact that she was robbed of the following items: a bag of rice, bag of salt, cloths, meat, necklace, wrist watch, shoes and the sum of N42,000.00 cash on 23 December 2006.

She also testified that her assailant (the appellant) threatened to kill her with the knife he was holding.

Reference was made also to the evidence by PW2, PW3 and PW4 who further corroborated the fact that PW1 was indeed robbed and that the robbery was armed robbery. The learned counsel cited the following authorities to buttress his submission: Ebeinwe v. State (2011) All FWLR (Pt. 566) 413, (2011) 7 NWLR (Pt. 1246) 402, (2011) Vol. 201 LRCN 220-238 at page 224; also the judicial guidance given in the case of Fatai Olayinka v. State 30 NSCQR 149 at pages 162-163; that is clear from testimony of PW1, that in the encounter with the appellant, the items mentioned earlier in the course of this judgment were forcefully taken away from her under restraint, physical assault/ harm and fear of instant death with the use of a knife.

It is the submission of the learned counsel further that the evidence of PW2, PW3 and PW4 was not challenged and was therefore rightly acted upon by the trial court. Counsel cites again the case of Ebeinwe v. State (supra); that the learned trial judge was therefore right when he held as he did at pages 72 to 73 of the records of appeal and which the lower court also endorsed at pages 147, 150-151 of the record of appeal.

It is the submission of the learned counsel further that, given the evidence of PW1, which is materiality supported by the evidence of PW2 and PW3, and which evidence was not in any way disturbed by the defence even under cross-examination, that there was a reasonable basis to hold that the prosecution proved its case beyond reasonable doubt.

The learned counsel urges this court to endorse the conclusion arrived at by the trial court at pages 75 and 76 of the record of appeal herein; that the findings of facts by the trial court after thorough and painstaking assessment of the evidence placed before it and supported outrightly by the lower court, cannot be faulted.

In addition to the light at the petrol station, for enough identification, the learned counsel took into consideration the time spent on haggling the bike fare by the appellant and PW1.

This, counsel argued, gave PW1 an opportunity of seeing the appellant clearly; that it is highly improbable to imagine that PW1 could have simply jumped on the appellant’s motor bike without making efforts to see the face of who was going to carry her at that time of the night; that it is part of personal security initiatives. The Court of Appeal, counsel submits, rightly supported and endorsed the view held by the trial court and hence did not see it necessary to disturb the finding in that behalf.

Again, and still on the question of identification, counsel argues that the best identification of the accused person is the evidence given by the victim of the crime for which the accused is charged. See Okosi v. State (1989) 1 NWLR (Pt. 100) 642, (1989) 1 ACLR 301.

On the question of alibi which the appellant tried to raise in the open court during his defence, the respondent’s counsel argued that no such defence was raised by the appellant soon on his arrest by the police on 27 December 2006. Rather, that in his statement, exhibit P1, he only said that he carried a man from Eguare-Irrua to Opoji at about 7.30 p.m. on 23 December 2006 and that on their way they saw a bag containing assorted cloths, money and some items; that the man asked the son to carry the items to his house with a wheelbarrow; that he (appellant) never provided the man’s name nor his address.

The learned counsel for the respondent related also to exhibit P2, the appellant’s 2nd statement made to the police on 8 March 2007, wherein he claimed that he stopped his commercial cycling work at 6.30 p.m on the same day; that in both statements, the appellant did not say that he was at home at 9 p.m on 23 December 2006, which was the time and date the robbery, took place; that the alibi raised was rightly ejected by the two lower courts. Counsel urges this court to reject same also as an afterthought. This court, learned counsel submits, should not disturb the concurrent findings by the two lower courts.

It is the submission by the appellant’s counsel extensively, that the knife ought to have been tendered in evidence if at all it was used that night as alleged, that the failure of PW1 to have described the nature of the knife and production of same have rendered the prosecution’s case defective by failing to prove an essential ingredient of the offence of robbery.

In refuting the foregoing submission, the respondent’s counsel drew the court’s attention that contrary to the contention held by the appellant’s counsel, the trial court did not rely solely on the evidence of PW1 in finding that the robbery on PW1 amounted to an armed robbery. The learned counsel made reference to pages 72 and 73 of the records of appeal where the trial court clearly relied on the evidence of PW3 and PW4 in reaching the conclusion that the robbery was an armed robbery.

The finding, counsel argues, was sustained by both the trial and lower courts; that the contention of the appellant that the trial court ought to have ensured that the evidence was credible and probable before placing reliance on it, is, learned counsel submits, misplaced and holds no ground.

Accordingly, it is submitted by the respondent’s counsel therefore, that the two courts below complied rightly with the decision of this court in Gonzee (Nig.) Ltd v. Nigerian Educational Research and Development Council (2005) All FWLR (Pt. 274) 235, (2005) 13 NWLR (Pt. 943) 634 at 650 relied on by the appellant. In other words, that even where evidence is unchallenged and uncontradicted, the trial court has a duty to evaluate same and be satisfied that it is credible and sufficient to sustain the claim.

On the submission by appellant, that prosecution ought to have produced the knife to prove that the robbery was an armed robbery, the respondent’s counsel argues vehemently that there is no legal obligation on the prosecution to produce or tender the knife in evidence. Counsel emphasized strongly that the failure by the prosecution to tender the knife used by the appellant in attacking PW1, did not in any way water down the credible and unchallenged evidence that the appellant committed armed robbery against PW1 on 23 December 2006.

In summary, the respondent’s counsel re-iterates with great emphasis that the prosecution led credible evidence via the PW1 in identifying the appellant as the robber who robbed her on the date in question, thus fixing the appellant at the scene of crime; that this evidence was supported by the testimonies of PW3 and PW4 who are the police officers that investigated the crime of robbery.

It is the submission of counsel further that, the trial court believed the evidence of PW1 in its entirety and rightly rejected the defence of alibi set up by the appellant; that the identification of the appellant by the PW1 was in order and was not shaken in any material particular by the fire of cross-examination. The court, learned counsel re-affirms correctly assessed this evidence and rightly relied thereon.

What is more, counsel argued, the total cumulative effect of the admissions made by the appellant in his testimonies in chief and under cross-examination, to the effect that he rode on the type of motorbike which PW1 stated was ridden by the assailant on the day PW1 was attacked and robbed plus the fact that he is a commercial motorcycle driver lend credence to the fact that the courts below were correct in their findings.

In totality, the respondent’s counsel urges this court to resolve the issue in favour of the respondent and affirm the decision of the trial court and the Court of Appeal in convicting and sentencing the appellant to death by hanging.

The lone issue for determination is whether the Court of Appeal was right in affirming the decision of the trial court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt.

The law is very well settled, as conceded to by counsel on both sides, that the standard of proof in criminal cases is proof beyond reasonable doubt, whilst the onus of proof of the guilt of the accused person rests squarely on the prosecution. It is static and does not shift. See the case of Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538, (1987) 7 SCNJ 233, and also section 135 of the Evidence Act, 2011.

In the case of Ikemson v. State (1985) 1 NWLR (Pt. 2) 378 for instance, it was held that in serious offences carrying death penalty, a high degree of proof is necessary to secure conviction.

It is well established in a long line of authorities that, to sustain a conviction in a charge of armed robbery, the prosecution must prove the following ingredients, which are very essential and mandatory:

(a) That there was a robbery;

(b) That the robbery was carried out with the use of offensive weapons;

It is imperative to say that all of the above requirements must be consecutively proved beyond reasonable doubt before a conviction can be sustained. See Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1 at 32, (2011) 12 SC (Pt. 1) 71; see also Bozin v. State (1985) 2 NWLR (Pt. 8) 465, (1985) 16 NSCC (Pt. II) 1087, (1985) 7 SC 450.

Proof required in a criminal trial, no matter how serious the offence might be, is always proof beyond reasonable doubt; it is not proof beyond the shadow of a doubt. See the case of Moses Jua v. State (2010) All FWLR (Pt. 521) 1427, (2010) 4 NWLR (Pt. 1184) 217 at 243.

The question to pose at this juncture is, whether in the light of the findings by the trial court and affirmed by the lower court, it can be said rightly that the prosecution did satisfy the standard of proof as laid down by the authorities under reference supra?

The answer to the question raised will necessitate recalling the judgments by the two lower courts in convicting the appellant.

Specific reference should be made for instance to pages 73, 74, 75 and 81 of the record of appeal respectively wherein his lordship at the trial court held and said:

“That the PW1 having stated in her evidence that in the bush, accused person demanded for all she had on her and threatened to stab her with a knife he was holding, the robbery on PW1 was an armed robbery. ————————————————————-

That the story of events that took place on 27 December 2006 and leading to the arrest of the accused person as narrated by PW1 was substantially corroborated by PW2 who was with PW1 on the said 27 December 2006. PW1 was quite positive and her evidence was direct and unequivocal that the appellant was the person that robbed her on 27 December 2006. —————————————————————-

That given the graphic nature of the evidence of PW1, the fact that she interacted with the appellant she was in position to recognize him, did recognize him indeed and that therefore an identification parade was unnecessary. —————————————————————-

That on the basis of the evidence before the honourable court, the prosecution proved the charge of armed robbery against the appellant.”

The appellant’s appeal against the foregoing findings was dismissed by the Court of Appeal. In affirming the conviction and death sentence on the appellant, the lower court made the following far-reaching conclusions and said:

“That the appellant did not bring in a better defence to counter the evidence of PW1 and therefore, the second ingredient of the offence i.e. that the robbery was an armed robbery stood proved against the appellant.

That the appellant made no answer to the fact that, at the time of haggling the fare to board the motorbike, light from electricity at the AP filling station was on, and it took some moment to agree on the fare which afforded PW1 the opportunity to see the appellant well and that the head light from the motor bike also assisted in bringing out the appellant.

That the evidence of the identification of the appellant by PW1 was quite strong and positive considering the level of interaction between the two, before and during the time of the commission of the offence and it would not disturb the trial court’s finding on the identification of the appellant.”

On whether there was robbery and if the robbery qualified as armed robbery, PW1, the victim of the robbery, herself gave very vivid, graphic and unchallenged evidence during trial in support of the fact that she was robbed of the various item; she enumerated earlier in the course of this judgment, inclusive of cash amount, on 23 December 2006. She also testified that her assailant (the appellant) threatened to kill her with the knife he was holding. This was her evidence at pages 37 to 39 of the record:

“… as we were going, accused passed the agric road, I shouted where are you taking me to? Accused drove into the bush, he told me to come down, that my life will end that day.

Accused started beating me inside the bush. He asked me to give him all I had otherwise he will stab me with the knife he was holding. I gave him all I had. He also demanded my phone.

I told him all I had none and he continued beating me. The weave-on I fixed he used his hand to remove it. He gave a bite on my left breast. I then fainted.”

In continuation further PW1 said:

“… on that day I was carrying a bag of rice, a bag of salt, a bag containing clothes, meat, I had N42,000 inside my bag which my brother gave to me in respect of his house, a necklace, wrist watch and shoes.”

PW2, PW3 and PW4 in their testimonies also gave credence to the evidence given by PW1 that she was indeed robbed and that the robber exerted force of violence on her resulting in bodily injuries. PW2, the victim’s brother, testified that although he did not witness the robbery, upon his return from Lagos on 26 December 2006 (three days after the robbery) he met PW1 in a critical condition with a swollen face and that upon his enquiry, PW1 narrated the incident of the robbery to him. The witness PW2 gave a very clear evidence at page 40 of the records.

PW3 and PW4 who, conducted investigation into the matter, also gave evidence to the effect that PW1 was indeed robbed and that the robbery was armed robbery. At page 40 of the record, this was what PW3 had to say:

“… I visited the scene of crime with both parties. I called a photographer who snapped the complainant because of the human bite she alleged accused gave her. I refer the complainant to Othibo-Okha Teaching Hospital for treatment.”

Also at pages 44-45 of the record, this was what PW4 had to say:

“…. I observed that the victim (i.e. PW1) sustained injury on her breast which was being treated. I also observed that a medical report issued by a doctor in Irrua was also attached. After our investigation, accused was charged to court for the offence of armed robbery.”

In describing the offence of robbery, this court had this to say in the case of Ebeinwe v. State under reference supra at page 224:

“… Robbery is theft or extortion by force or inducing of fear by coercion … Therefore theft in all its ramifications is robbery if in order to commit the theft or in committing the theft or in carrying away or attempting to carry away property obtained by theft the offender/accused for that end voluntarily causes or attempts to cause any person’s death or hurt or wrongful restraint or fear of instant death or hurt or instant hurt or of wrongful restraint.”

Judicial guidance was given also by this court in Fatayi Olayinka v. State 30 NSCQR 149 at pages 162-163. It is clear from the foregoing principle that where it is shown that in forcefully taking away the property of another, the assailant either hurts or attempts to put his victim in a state of fear or apprehension of eminent harm or death or restraint, an armed robbery has taken place.

It is also clear from the testimony of PW1, that in the encounter with the appellant, the items mentioned earlier were forcefully taken away from her under restraint, physical assault/harm and fear of instant death with the use of a knife.

It is also pertinent to restate affirmatively that the testimony of PW1 of her robbery which was supported by the evidence of PW2, PW3 and PW4 are all facts which have not been challenged effectively by the defence in any material particular. It is not surprising therefore that the trial court in its evaluation of evidence at page 73 of the record, took the view that:

“Under cross-examination, evidence of PW1 was not shaken as to the fact that there was an armed robbery.”

The law is well settled again and again that evidence which is neither challenged nor debunked remains good, credible and should be relied upon by a trial judge, who would in turn ascribe probative value thereon. The view held by this court in the case of Ebeinwe v. State (supra).

Predicated on the facts presented before it, the trial court at pages 72 to 73 of the records arrived at this conclusion and said:

“In the instant case, PW1 gave evidence and stated graphically how she was carried on a motorcycle, taken into the bush and robbed of her belongings with threats of stabbing her. She stated that she was abandoned in the bush and only found her way to the village the following morning.

As a matter of fact and by her evidence, PW1 is the victim of the armed robbery. Under cross examination, evidence of PW1 was not shaken as to the fact that there was armed robbery.

PW3 stated in her own evidence that she visited the scene of the robbery. PW4 equally stated that his team of investigators visited the scene.

I find and I hold that there is evidence before me which I accept and believe that PW1 was robbed of the various items she listed on 23 December 2006.”

Their lordships of the Court of Appeal, upon their review of the foregoing findings, did not find it difficult in agreeing with the learned trial judge. At page 147 of the record of appeal for instance, the lower court therefore found as follows:

“Based on those facts as contained in the evidence of PW1 and those investigations which followed the report made to the police and the subsequent evidence of PW3, and the PW4; the investigating police officers, the first (1st) ingredient in the proof of the offence of armed robbery was established by the prosecution, i.e. there was robbery on 23 December 2006, and that the PW1 was the victim.”

In further review of the evidence, the lower court continued at pages 150-151 of the record and also said:

“…. PW1, the victim mentioned the appellant at the first stop in the bush, brought out a knife, which put her into great fear. Her evidence on the said use of the knife as a weapon for the commission of the offence was never discredited at cross-examination by the appellant. The appellant on his part did not bring in a better defence to counter that evidence of PW1. That piece of evidence therefore stands un-impeached. In that regard therefore, the second (2) ingredient of the offence that the robbery was an armed robbery stands proved against the appellant.”

The third element of the offence is whether it was the appellant who robbed PW1.

At page 156 of the record of appeal, their lordships of the lower court held and said thus in their judgment.

“In the instant appeal, the evidence of the identification of appellant by the PW1 is quite strong and positive, considering the level of interaction between the two, before and during the time of the commission of the crime. This court is in agreement with the trial court, with respect to its finding on the identification of the appellant as the person who robbed the PW1 on 23 December 2006.”

It is submitted by the appellant’s counsel that the evidence of PW1, given all the surrounding circumstances could not have been sufficient, credible and probable to have warranted the finding that the appellant was properly identified by PW1 as the assailant who robbed her.

The learned counsel submits further that even if there was electricity light at the AP junction as testified by PW1 that the testimony of the same PW1, under cross-examination, to the effect that her alleged assailant was wearing a face cap, which was bent on his face, is to call into serious question the probability of PW1’s identification of the said assailant at the AP junction.

In further contemplation, the learned counsel for the appellant threw a poser that questions whether PW1 could have clearly seen through the face cap that she argues was covering the assailant’s face so as to have recognized the face. The counsel re-iterates also that PW1 did not furnish any further particulars as to how she came to identify the clothes picked up from the appellant’s house as those worn by her assailant at the time of the incident.

It is borne on the record emphatically that the witness, PW1, in order to demonstrate that she knew that it was the appellant who robbed her of her belongings under very violent circumstances and apprehension of imminent death, had this to say in her evidence at page 37 of the records:

“…accused brought a motor bike ridden by accused.

Accused charged me N300 to take me to Obedu. I told him N200 which he agreed.”

In further testimony, PW1 also had this to say extensively at page 38 of the record:

“…there was light in AP station where accused picked me and also put on the light on his bike that is how I was able to recognize accused.”

At the same page 38 also, PW1 said:

“… on 27 December 2006, as we were going to Irrua police station to report the incident as we got to Akho junction at Irrua, I identified accused and I showed him to my brother as the boy that robbed me. When accused saw me he started running with his bike. We followed. He entered a house. My brother and I then went to the police station to bring police.

As we were coming, we saw accused when he saw us, he ran into a mechanic workshop. The police arrested him there.”

In further evidence, PW1 continued and said:

“At the accused house, I saw the clothes accused wore on that day he robbed me. I showed it to my brother, we took it. The clothes were hung on a rope outside. The clothes were handed over to the police.”

Under cross-examination PW1 stated at page 39 thus:

“The bike accused rode is cargo motorcycle.”

PW2 was with PW1 at the time PW1 saw and identified the appellant as the person who robbed her. At page 40 of the record, PW2 also said:

“On 27 December 2006, I took PW1 to Irrua to report the incident to the police on our way at Akho junction, PW1 saw accused and she identified him as the person who robbed her on 23 December 2016. Immediately accused saw us he drove off in his bike. Unknown to the accused we traced him to a certain compound in Irrua…”

In continuation of his further evidence, which lent credence to the account given by PW1, the witness PW2 also said:

“….in the house, PW1 identified some clothes hung on the rope in the compound which she said the accused was wearing on the day of the incident, a jacket and a jeans trouser. PW1 took the clothes and I quickly took her to report the incident to the police.

A policeman was sent to follow us to arrest the accused. As we were going, we saw accused on the way, when he saw us, he ran into a mechanic workshop. It was there the policemen arrested him and took him to the police station.”

PW3 was one of the Investigation Police Officers. She testified that it was the appellant who assisted them in locating the place (scene of crime which was the bush where the appellant robbed PW1). In the witness’s words at page 42 of the record, she said:

“The day we visited the scene of crime, we found it difficult to locate the place but as we were leaving the place it was accused who showed us the quickest way out of the place.”

The evidence by PW3 was not contraverted and it leaves a very strong question mark on the appellant. He knew the quickest way out of the place!!

The appellant in his evidence-in-chief and under cross examination admitted that the clothes which PW1 identified as the clothes the appellant was wearing on the day of incident exhibits P3 and P4 (jacket and trousers) were his own. He merely stated under cross-examination that he did not put them on, on the day of the incident. Also under cross-examination, the appellant further admitted riding the particular motorbike which PW1 stated was ridden and used in conveying her by her attacker on the day of the incident.

Given all circumstances above, the trial court at page 75 of the record held and said:

“In the instant case, PW1 recognized the accused person. She said there was light, they spent some time to haggle and negotiate the price with which accused person as the rider of the motor cycle was to carry her to her destination. It is my humble view that given the graphic nature of the evidence of PW1, the fact that she interacted with the accused person, she was in a position to recognize him. Therefore, I hold that identification parade was unnecessary.”

Further still and at page 76 of the record, the learned trial court judge continued in the same tone and said:

“Apart from the fact that PW1 was able to recognize accused person as the person who robbed her, there is also the evidence adduced by the prosecution that in the house of the accused person, the clothes he wore on the day of the robbery were found and PW1 recognized them. The clothes were tendered as exhibits P-3 and P-4. Also tendered was a face cap which PW1 said accused person wore on the day of the incident but abandoned at the scene… I believe the evidence of PW1 and I find that the recognition of the accused by PW1 is direct and unassailable and as such identification parade is unnecessary.”

The lower court in the circumstances, after a full review of the entire evidence, did not hesitate but agreed squarely with the trial court’s finding when it said thus at page 156 of the record:

“In the instant appeal, the evidence of the identification of the appellant by PW1 is quite strong and positive considering the level of interaction between the two, before and during the time of the commission of the crime. This court is in agreement with the trial court, with respect to its finding on identification of the appellant, as the person who robbed the PW1 on 23 December 2006. This court will not disturb that finding.”

For all intents and purposes, the finding of facts by the trial court was after a thorough and painstaking assessment of the evidence placed before it. The findings as rightly affirmed by the lower court, cannot be faulted. It is absolutely right, I hold.

As rightly submitted also by the learned counsel for the respondent, the lower court was absolutely right when it refrained from disturbing the finding of the trial court.

Without having to argue the point, the law is settled that the best identification of an accused person is the evidence given by the victim of the crime with which the accused is charged.

See the case of Okosi v. State under reference supra.

It is well established further that the question regarding the proper identification of a party to a crime is one of the fact to be determined by the trial court. This legal proposition resonated in the decision of this court in the case of Ukpabi v. State (2004) All FWLR (Pt. 218) 814, (2004) 11 NWLR (Pt. 884) 439 wherein Musdapher JSC said:

“The law is now settled that, the question whether an accused is properly identified as the one who was a party to the commission of the criminal act is a question of fact to be considered by the trial court on the evidence adduced for that purpose.”

See also the case of Osuagwu v. State (2009) All FWLR (Pt. 460) 700, (2009) 1 NWLR (Pt. 1123) 523 at page 527.

It is pertinent to restate the following salient facts which were given by the appellant but corroborative of the evidence given by the PW1. In other words, it is on record that the appellant, although he denied robbing PW1, admitted however that he was a commercial motor bike rider; that he used a red cargo motorcycle for commercial purpose on 23 December 2006, the day PW1 was robbed. He also admitted that the clothes, exhibits P-3 and P-4 which PW1 identified as the clothes he was wearing on the day of the incident were his but that he did not put the cloths on the day in question.

Exhibits P-1 and P-2 are the two extra-judicial statements made by the appellant to the police as soon as he was arrested on 27 December 2006. In his evidence in open court at page 48 of the record he said:

“On 23 December 2006, I went to work as a bike rider in the morning of that day. I closed from work at 6p.m. on that day. I know PW1 who is also complainant in the case. On 23 December 2006 at 9 p.m., I was in my house.

In exhibit P-1 which was the first statement made by the appellant as soon as he was arrested on 27 December 2006, he did not raise alibi by stating that he was at home by 9 p.m. Rather, he stated that he carried a man from Eguare-Irrua to Opoji at about 7.30 p.m. on 23 December 2006 and that on their way, they saw a bag containing assorted clothes, money and some items and that the man asked the son to carry the items to his house with a wheel barrow. He neither provided the man’s name nor his address.

Exhibit P-2 was the second statement made by the appellant at the State C.I.D., Benin on 8 March 2007. He claimed that he stopped his commercial cycling work at 6.30 p.m., on same day.

It is revealing to say that in both statements, the appellant did not say that he was at home at 9p.m. on 23 December 2006, which was the time and date the robbery took place.

Appellant relied on the case of Shehu v. State (2010) All FWLR (Pt. 523) 1841, (2010) 8 NWLR (Pt. 1195) 112. I agree with the respondent’s counsel that the authority is remarkably distinguishable with this case.

In that case, the defence of alibi raised was not investigated at all and the prosecution did not call the investigating police officer in evidence. Hence the court held that the alibi was never investigated by the police, who never testified in that case.

In the instant case however, the appellant did not raise the alibi at the onset in any of the two extra-judicial statements he made at the earliest opportunity. It was only during his testimony in court that he feebly tried to raise it and for that reason both the lower courts held that it was an afterthought and therefore a defence which is not available. Both courts were ad-idem on their findings. The case of Shehu v. State (supra) is not on all fours with the case at hand. Consequently, the question of alibi could not have created any doubt in the mind of the judge as to the guilt of the appellant.

The bare denial of the crime and the lame defence of alibi which the appellant put forward for purpose of seeking to confuse the court were not helpful as he failed to account for where he was by 9 p.m., on 23 December 2006 when he was said to have robbed PW1.

The trial court, did consider exhibits P-1 and P-2, carefully, in the light of the defence of alibi raised by appellant at the trial and thus the reason why it held thus at pages 76-77 of the record:

“Accused person also tried to put up an alibi by stating that he closed from work at 6 p.m., and at 9 p.m., he was in his house. I have considered the alibi raised by accused arising from his statements to police and evidence in court and I hold that is weak and cannot stand the iron cast evidence fixing him to the crime which is charged. In this regard, the statement of the accused person made on 27 December 2006, a few days after the incident and which was admitted in this proceeding as exhibit P1 becomes very relevant and material.

In exhibit P-1, accused person stated that he carried a man from Equare-Irrua to Opoje at about 7.30 p.m. on 23 December 2006. In the said statement, he stated that on their way, they saw a bag containing assorted clothes, money and some food items and that the man carried them away.

In the said statement also, accused did not raise alibi which would have put the police on investigation as required by law. Similarly, in exhibit P-2 which is the statement made by accused person at the State C.I.D., Benin on 8 March 2007, though accused now claimed he stopped his motorcycle work at 6. 30 p.m. on 23 December 2006 as against the fact that he carried a man from Eguare-Irrua at Opoje at 7.30 p.m. on the same day as stated in exhibit P-1, he did not also say in exhibit P-2 that he was at home at 9p.m. on 23 December 2006. With the contradictory statements made in exhibit P-1 and exhibit P-2 as to the time he stopped his motor cycle work as to where he was, the alibi raised by accused person in his evidence in court is an afterthought and it is bound to collapse and I reject same.”

The lower court in its review of the evidence affirmed the conclusion arrived at by the trial court and at page 160 of the record and said:

“… The appellant raised his alibi only during trial, which does not afford him a good defence. By so doing, at the stage of trial, he deprived the police their duty to investigate the alibi raised.”

I seek to point out at this juncture that the lower court in arriving at their decision relied on the case of Ukwunnenyi v. State (1989) 7 SCNJ 34, (1989) 20 NSCC (Pt. 2) 42, (1989) 4 NWLR (Pt. 114) 131 where it was held that “the best defence and evidence of alibi is one pleaded at the first opportunity and not at the trial.”

I also find the conclusion arrived at by the lower court as unassailable.

On the failure to tender the knife at the trial, the appellant submits the absence of any such weapon as damaging to the prosecution’s case. It is the appellant’s contention that since the incident happened at night and inside the bush that PW1 could not have easily seen the knife or any other weapon in the possession of her attacker; hence her inability to describe the nature of the knife in her evidence. In the circumstance therefore that the prosecution had failed to prove an essential ingredient of the offence of robbery.

Contrary to the contention borne out on behalf of the appellant supra, I hold the view that the respondent’s counsel was right on his submission that the trial court did not rely only on the evidence of PW1 in finding that the robbery on PW1 amounted to an armed robbery. This is because when regard is had to the records at pages 72 and 73, same reveal that the trial court clearly relied on the evidence of PW3 and PW4 in reaching the conclusion that the robbery was an armed robbery.

The lower court at pages 146-147 of the records also arrived at the same conclusion when it said thus:

“…based on those facts as contained in the evidence of PW1 and those investigations which followed the report made to the police and the subsequent evidence of PW3 and PW4, the investigations of police officers, the (1st) ingredient in the proof of the offence of armed robbery was established by the prosecution.”

The evidence given by PW3 and PW4, the police officers who investigated the armed robbery, were unchallenged.

I further wish to restate that the law is firmly established that the trial court could have relied even on the sole evidence of PW1, which is credible and unchallenged. See the case of Igbo v. State (1975) 9-11 SC 129, (1975) 9 NSCC 415 at 418 wherein Obaseki JSC (as he then was) held and said:

“If the evidence of a single witness sufficiently proves the case against an accused person and the trial court accepts the evidence, there is no rule of law or practice dissuading the court from convicting on the evidence.”

The same principle was applied also in the case of Abogede v. State (1996) 4 SCNJ 223, (1996) 5 NWLR (Pt. 448) 270 at page 280.

Credibility of evidence does not therefore ordinarily depend on a number of witnesses. The determining yardstick is credibility and question of belief.

The appellant, who had the opportunity never deemed it important to cross-examine PW1 on the nature of the knife and how she was able to see the weapon at the time and place in question. He was also represented by counsel all through the trial. He must be deemed to have admitted that indeed he employed the knife in robbing PW1 on 23 December 2006. See the case of Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 248, (1992) 6 SCNJ 59, where this court held:

“Where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact.”

Further still and to show that the prosecution is not duty bound to produce the knife, there is no legal obligation on the prosecution to produce or tender the knife in evidence. The lower court was clear and could not be faulted on this point when it held at page 148 of the record and said:

“Let me mention here and now, that it is not the law, that the firearms, or the offensive weapons used must be tendered in proof by prosecution to commission of armed robbery. This issue has since been settled by the Supreme Court in case of Fatai Olayinka v. State 30 NSCQR 149 at pages 162-163…”

It is a settled principle therefore that the failure of the prosecution to tender the knife used by the appellant in attacking PW1 did not in any way water down the credible and unchallenged evidence that the appellant committed armed robbery against PW1 on 23 December 2006.

Furthermore and on the question of identification, I seek to restate emphatically that the Court of Appeal was correct in upholding the decision of the trial judge who believed the evidence of the PW1 that the appellant was correctly identified by her as having taken part in the robbery in question.

All through the cross-examination of the PW1 by the appellant’s counsel during trial, counsel made no serious effort to destroy the evidence of identification of the appellant by the PW1 and this was the very foundation of the case of the prosecution. Again, see the case of Moses Jua v. State (supra) where the significance of cross-examination in criminal proceedings was stressed by this court.

Contrary to the submission made by the appellant’s counsel, the doubt he alleged on the prosecution’s case is nonexistent.

As a consequence, all the reference made to the cases of Queen v. Obiasa (1962) 1 All NLR 651, (1962) 1 SCNLR 137; Shehu v. State (2010) All FWLR (Pt. 523) 1841, (2010) 8 NWLR (Pt. 1195) 112 and Almu v. State (2009) 10 NWLR (Pt. 1148) 31, (2009) 4 NSCC 266 are not applicable or relevant to the appellant’s case.

On the evidence by PW1 that her assailant was wearing a face cap which was bent on his face, the appellant’s counsel poses a question as to how she could have clearly seen through the face cap that was covering the assailant’s face.

As rightly submitted by respondent’s counsel, to wear a face cap bent over ones face is not the same thing as to wear a face cap covering one’s face. The appellant did drive the motorcycle. His face was therefore not covered completely or else he would not have been able to drive from AP junction to the bush at that time of the night.

On the question of headlight on the assailant’s motorbike, it is the argument of the appellant that it could not have assisted PW1 to recognize him coupled with the fact that PW1 boarded the bike at AP junction, (where unlike a filling station there is no likelihood of having light).

At page 37 of the record, this was what PW1 had to say:

“I boarded a bus which dropped me at AP junction, Irrua. Accused came and said I should enter his vehicle to Obedu. I now say accused brought a motorbike ridden by accused.”

At page 38 of the record, the witness PW1 also said:

“There was light in AP station where accused picked me and he also put on the light of his bike that is how I was able to recognize the accused.”

Contrary to the contention held by the appellant, there was light at both the station and supported by the headlight on the appellant’s motor bike for clear identification of the appellant where he picked the PW1. The witness was not cross-examined on this. It is established firmly therefore and the court can act on it.

The appellant’s counsel argued further that the period spent between PW1 and the appellant in haggling over the fare was not prolonged to aid effective and proper recognition of her assailant.

In response to the foregoing it is pertinent to recount that in addition to the haggling over the motorbike fare, there is the evidence that PW1 had with her, a bag of salt, a bag of rice and other items which her assailant carried for her on the motorbike.

Pages 38 and 39 of the records are evident.

Having regard to the nature of the items, it could have taken both PW1 and her assailant some time to arrange those items and also PW1 on the motor bike before embarking on the journey.

I seek to say that the time including their interaction was enough for PW1 to have fully seen the person who was carrying her.

Further still and on the issue regarding providing further particulars in respect of the clothes of the appellant. Exhibits P3 and P-4) which PW1 identified as the clothes he wore on that day, I agree with the respondent’s counsel that there was enough identification. In other words, with the level of the interaction between the appellant and PW1 which was also enhanced by the lighting at the AP station and the appellant’s motor bike headlight, PW1 was sufficiently afforded the opportunity to have seen the appellant enough to know the clothes he was wearing on the day of the incident.

It is also relevant to say that the appellant himself admitted that the clothes were his, only that he did not wear them on that day. PW1 was very sure and did not make any mistake in identifying someone else’s clothes. The fact that the appellant also rode a cargo motorcycle was established as correct.

The Court of Appeal in my view was therefore right in concurring with trial court, I also concur same.

I seek to say also that the premises on which the arguments of the appellant are based are all findings of facts on which both the trial court and the lower court made concurrent findings.

Accordingly, the conclusions drawn by the two lower courts therein are final with there being no evidence that same were perverse or occasioned a miscarriage of justice or based on wrong principles.

The concurrent finding of the two courts below on the fact that the ingredients of armed robbery was proved beyond reasonable doubt by the prosecution is clearly supported by the evidence given by the PW1 also by the evidence of PW2, PW3 as well as PW4 and indeed corroborated by the evidence of the appellant himself. The witnesses were not shaken at all during at all during cross-examination. Their evidence is neither perverse, erroneous nor a violation of any known principle of law.

The lower court, as clearly borne out of the record, concurred with the trial court on all the issues that: there was robbery on PW1; the robbery was an armed robbery and that it was the appellant who robbed PW1. The rejection of the alibi put forward by the appellant was also based on a sound decision.

It is well settled by numerous decided cases that this court will not disturb a concurrent finding of fact by the courts below unless the decision is perverse or erroneous and cannot be supported, having regard to the evidence adduced by the prosecution or is a violation of some principles of law. See Olaiya v. State (2010) All FWLR (Pt. 514) 1, (2010) 3 NWLR (Pt. 1181) 423 at 438, where this court held and said:

“The appeal being one against concurrent findings of facts of two courts below, the appellant is very far from discharging the burden the law places on him of showing that the decision of the courts below were perverse or cannot be supported having regard to the evidence adduced by the prosecution. In situation such as this, in the present case, I see no reason whatsoever to disturb the findings of the trial court which were affirmed by the court below that the appellant was indeed guilty of the charge.”

Also on the same principle are the cases of Attah v. State (2010) All FWLR (Pt. 540) 1224, (2010) 10 NWLR (Pt. 1201) 190 in page 226 and Archibong v. State (2006) All FWLR (Pt. 323) 1747, (2006) 14 NWLR (Pt. 1000) 349 wherein this court relied on its earlier decision in Olokotintin v. Sarumi (2002) FWLR (Pt. 122) 80, (2002) 13 NWLR (Pt. 784) 307 at 317.

On the community reading of the entire evidence and the circumstances surrounding this case, the concurrent findings of the two courts below on the fact that the ingredients of armed robbery were proved beyond reasonable doubt by the prosecution is very overwhelming. The evidence which is unshaken under cross-examination is neither perverse, erroneous nor a violation of any known principle of law.

There is nothing weighty enough placed before this court to disturb the concurrent findings of fact by the trial court and affirmed by the Court of Appeal with respect to the evidence of the prosecution witnesses which the trial court found as credible having had the opportunity of seeing and observing the demeanour of the witnesses.

The Court of Appeal concurred with the trial court on all the issues that there was robbery on PW1, the robbery was an armed robbery and that it was the appellant who robbed PW1.

On the totality of the foregoing, I hold the view also that this court has no reason to disturb these findings of fact as they have not been shown by the appellant to be either preserve, unsupported by the evidence led or a violation of any known principle of law.

The lone issue raised for determination is hereby resolved in favour of the respondent and against the appellant. The decision of the trial court which was affirmed by the Court of Appeal is also endorsed by me. The conviction and sentence of the appellant to death by hanging is hereby also affirmed.

Appeal is dismissed and appellant is to die by hanging.