‘Prosecution, Not Bound To Call Every Witness’

This is an appeal against the judgment of the Court of Appeal, Ilorin Division, which affirmed the decision of the High Court of Kwara State. In the High Court, the appellant was arraigned on the following two-count charge which read as follows:

Count one- That you Bello Shurumo, Manu Namuj (sic) (at large), Doju Namujere (at large) and Tanu Namujere (at large) on or about September 13, 2006, at Alikaikai via Aderan Village Edu (sic) L.G.A. within the jurisdiction of this court did conspire to do an illegal act to wit: Armed robbery and you committed an offence contrary to Section 97.

That you Bello Shurumo, Manu Mamuj (at large), Doju Namujere (at large) and Tanu Namujere (at large) on or about September 13, 2006, at Alikaikai via Aderan Village Edu (sic) L.G.A. within the jurisdiction of this court robbed one’ Mohammed Natata at gun point and carted away the sum of N2,000 and some other valuable items, and thereby committed an offence punishable under Section 1 (2) of Armed Robbery and Fire Arms; (Special Provision) Act, Cap. R. 11 Laws of Federation of Nigeria, 2004.”

The appellant denied the two count charge. In a bid to prove its case, the prosecution called five witnesses who gave evidence, but the defence rested their case on the prosecution’s case and did not produce any defence. The learned trial judge found the accused appellant not guilty as charged, but found him guilty of attempted armed robbery and convicted him. He appealed to the Court of Appeal on three grounds of appeal which were dismissed, and the judgment and conviction of the trial court were affirmed. Again, in exercise of his ‘constitutional right’, the accused appellant has appealed to the Supreme Court.

Issues:

• Whether the prosecution has discharged the burden of proof imposed on it to prove the charge of attempted armed robbery and conspiracy to commit armed robbery beyond reasonable doubt in order for the court below to affirm the judgment of the trial court.

• Whether the court below was right in affirming the judgment of the trial court in the face of irreconcilable contradictions in the prosecution’s evidence.

• Whether the trial judge made proper evaluation of the confessional statements of the appellant in Exhibits B and C before relying on it to convict the appellant.

Aloma Mariam Mukhtar, JSC (Delivering the lead judgment): This is an  appeal against the judgment of the Court of Appeal, Ilorin Division, which affirmed the decision of the High Court of Kwara State.which read as follows: In the High Court, the appellant was arraigned on two counts

The appellant denied the two counts charge. In a bid to prove its case, the prosecution called five witnesses who gave evidence, but the defence rested their case on the prosecution’s case and did not produce any defence.

The learned trial judge found the accused/appellant not guilty as charged, but found him guilty of attempted armed robbery and convicted him. He appealed to the Court of Appeal on three grounds of appeal which were dismissed, and the judgment and conviction of the trial court were affirmed. Again in exercise of his constitutional right, the accused/ appellant has appealed to this court on four grounds of appeal from which three issues for determination were formulated in the appellant’s brief of argument, and adopted by the respondent in its own brief of argument.

The briefs of argument that were exchanged by the learned counsel for both sides were adopted at the hearing of the appeal. The first issue for determination is whether the prosecution has discharged the burden of proof imposed on it to prove the charge of attempted armed robbery and conspiracy to commit armed robbery beyond reasonable doubt in order for the court below to affirm the judgment of the trial court. In arguing this issue, the learned counsel for the appellant stated the essential ingredients of armed robbery as listed in the case of Bello v. State (2007) 10 NWLR (Pt. 1043) pg. 564, as follows: that there was a robbery or series of robberies; that each of the robbery was an armed robbery; that the accused was one of those who robbed. The learned counsel also stated the ingredients of attempt to commit armed robbery as follows: that the accused had an intention to commit armed robbery; that the accused was armed with dangerous weapon; that the accused exercised violence against his victim in the course of fulfilling his intention; that the accused actually exercised some overt acts to commit the robbery but was cut short as a result of a timely intervention.

The learned counsel for the appellant went to a great length of argument on the willingness of the confessional statements of the appellant; Exhibits B and C which he argued were made in English language, and as such required the interpretation of somebody.

He did not however suggest the language it should have been made in or interpreted to. This argument became necessary because reliance was placed on the confessional statements by the prosecution. According to the learned counsel, the requirements for an extrajudicial statement were not all met.

The learned counsel for the respondent has, however, submitted that the procedures in Kim v. State supra were followed in making Exhibits B and C and the trial court was satisfied before the two statements were admitted.

I endorse the above treatment of this point by the lower court. It suffices for the purpose of determining the probative value to be ascribed to Exhibits B and C. The case of R. v. Bodom and others relied upon by learned counsel for the appellant is of no material consequence to this argument. As to the weapon used by the accused, the learned counsel for the appellant has argued that there are contradictions as to whether the co-conspirators were armed with a particular weapon.

The statements in Exhibits B and C are different from the oral testimony in court. Learned counsel for the appellant has submitted that even the particular weapon/ arms used by the other co-conspirators have not been ascertainable as a result of the contradictory evidence of the prosecution witnesses, as there was no nexus between the cutlass tendered by them and the appellant. In reply, the learned counsel for the respondent has argued that it will be wrong to argue that there was no nexus between the cutlass and the appellant.

The pieces of evidence have directly connected the appellant with the offence of attempted robbery in that they revealed that the appellant was involved in the invasion of the house. Police Witness 4, together with his cohorts got to the house ready to attack anyone and prevent any resistance from the occupants of the house. The weapons they were armed with albeit cutlasses or other weapons they intended to use in the course of robbing PW.4, cannot be overlooked for there was no reason for their presence in the house at that time, other than to rob the complainant (PW 4); That the appellant was not in the house alone, but in the company of his friends points to the irresistible fact that they had conspired to perfect a criminal act which they had hatched together.

The learned counsel for the respondent again submitted that the overwhelming evidence of PW 4 and PW 5 who witnessed the robbery operation together with the appellant’s extra judicial statement, point to the fact that the decision to rob PW 4’s house was taken by the appellant and his co-offenders who are now at large. Indeed there is ample evidence in support of the fact that the appellant and his friends were in the house of PW 4, and the appellant and one of them went into PW 4′ s room and another into his wife’s room.

What if I may ask, what were they doing in that house uninvited and, in the rooms, and at night, and also armed with cutlasses? Surely they were not on social visit or a meeting. At least PW 4 did not say that he invited them. In the circumstances, any reasonable man will conclude that they were there on a dubious mission, which would have succeeded but for the intervention of the neighbours.

Definitely, overt acts to commit armed robbery had been proved. The above argument and findings apply to the issue of conspiracy raised by the appellant’s counsel. I am satisfied that there was sufficient evidence before the learned trial court to prove conspiracy, for there was a criminal purpose- common to the appellant and his friends who were present at the house of PW 4 on the day of the incident. I will thus not belabour this point, as I have adequately dealt with the pertinent and relevant evidence earlier on in the judgment.

Another grouse the learned counsel for the appellant has is that the prosecution did not call some vital witnesses. The submission of learned counsel is that the wife of the complainant, his child and Lawal Haruna who was said to have been injured by the appellant were not produced at the trial court to testify. He referred to the case of Azeez v. State (2005) 14 NWLR (Pt. 1108) pg 439, where the Supreme Court upheld the position of the Court of Appeal that Section 149(d) of the Evidence Act can be invoked against a prosecution that fails to call a vital witness, being that such witness if called may give evidence against the prosecution.

In reply, the learned Director of Public Prosecution has submitted that the prosecution is not bound to call any and every witness who was present at the locus criminis. I think the most important thing is that in a criminal case, the prosecution must endeavour to prove its case beyond reasonable doubt with the vital and relevant evidence it can produce.

What is vital evidence? Evidence that goes to the root of the ingredients and elements of an offence of which an accused person is charged. In this case, although the appellant was charged with armed robbery, he was convicted of attempt to commit robbery, having not actually committed the offence, but had the intention and had made plans which had reached the point and stage of execution.

The evidence of the complainant, PW 5, and the statement of the appellant himself in Exhibits B and G which I have already reproduced above are unequivocal, doubtless cogent and credible enough to sustain the offence of attempted robbery for which the appellant was convicted. If that is the case, then what is the essence of calling other witnesses, just because of the mere fact that they were around at the time of the incident?

It was not necessary. It is a settled principle of law that the prosecution is not bound to call every person that was linked to the scene of crime by physical presence or otherwise to give evidence on what he perceived.

Once persons who can testify to the actual commission of the crime and the other relevant ingredients have done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt, as stipulated by Section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria (1999).

It is not incumbent on the prosecution to call every eye witness to testify, in .order to discharge the burden placed on it by the law of proving a criminal case beyond reasonable doubt. As a matter of fact, a single witness who gives cogent eye witness account of the incident will suffice. See Odili v. State (1977) 4 SC 1 .

The next issue is whether the court below was right in affirming the judgement of the trial court in the face of irreconcilable contradictions in the prosecution’s evidence. In arguing his issue, the learned counsel for the appellant drew this court’s attention to some contradictions in the evidence of PW 3 and PW 4, which he submitted were fundamental and ought to have been resolved in favour of the appellant. He cited the cases of Akpa v. The State (2007) 2NWLR (Pt. 1019) pg. 500, lkemson v. The State (1989) 3 NWLR (Pt. 110) pg. 455, and Abagede v. The State (1996) 5 NWLR (Pt. 448) page 270.

The learned Counsel made heavy weather of these contradictions. It is however the submission of learned counsel for the respondent that it is not every discrepancy, contradiction and/or inconsistency that will destroy the credibility of witnesses. Such discrepancies, contradictions, and/or inconsistencies must be substantial to affect the case of the prosecution.

A careful perusal of the alleged discrepancies and contradictions show that they are not substantial. The fact that one witness said there were three persons in the house of PW 4, and the fact that another said there were four are to mind of no consequence to the substance of this case.

The important thing is that there was more than one person, and that has been established. Another point raised by the learned counsel is how the children who were already in bed knew that there were armed robbers outside.

I must say, with due respect that this is a most feeble argument; considering the time of the incident, which was only 8 p.m. Even though they were in bed they couldn’t have been fast asleep not to hear the sound of strange movements in their house. It is instructive to note that a village house such as the one occupied by the complainant and his family must be so compact that any occupant must perceive the danger that looms in the next room, or what was transpiring therein at that time. PW 4 himself testified in the course of cross examination that he was not fast asleep.

In the present case, I am satisfied that the prosecution proved its case beyond reasonable doubt, and has thus discharged the burden of proof placed on it. In this light, I solve the issue in favour of the respondent, and dismiss the related grounds of appeal.

This appeal is on concurrent findings of two lower courts, which this court has on several occasions in a plethora of authorities cautioned should not be disturbed, unless they are not supported by credible evidence, and have occasioned miscarriage of justice. See Sobakin v. State (1981) 5 sr. 75 and 19we v. State (1982) 9 SC 114.

This case definitely does not fall into this category of miscarriage of justice. In the circumstances, the appeal deserves to fail in its entirety. I affirm the decisions of the two lower courts and dismiss the appeal.

Lawyer: Olalekan Yusuf, with him Adeyemi Ogunluwoye, for the Appellant.

Ali Ahmad, Attorney­General, Kwara State with him J. A. Mumini, D.PP Kwara State for the Respondent