Prosecution not bound to call every eye witness – SC
“Count one1. That you Bello Shurumo, Manu Namuj (sic) (at large), Doju Namujere (at large) and Tanu Namujere (at large) on or about the 13th day September, 2006 at Alikaikai via Aderan village Edu (sic) L.G.A. within the jurisdiction of this Honourable Court did conspire to do an illegal act to wit Armed robbery and […]
“Count one
1. That you Bello Shurumo, Manu Namuj (sic) (at large), Doju Namujere (at large) and Tanu Namujere (at large) on or about the 13th day September, 2006 at Alikaikai via Aderan village Edu (sic) L.G.A. within the jurisdiction of this Honourable Court did conspire to do an illegal act to wit Armed robbery and you committed an offence contrary to section 97 of the Penal Code.
2. That you Bello Shurumo, Manu Mamuj (at large), Doju Namujere (at large) and Tanu Namujere (at large) on or about the 13th day September 2006 at Alikaikai via Aderan village Edu (sic) L.G.A. within the jurisdiction of this Honourable Court robbed one Mohammed Natata at gun point and carted away the sum of N2,000.00 and some other valuable items, and thereby committed an offence punishable under section 1(2) of Armed Robbery and Five (sic) Arms (Special provision) Act Cap R. 11 Laws of Federation Nigerian 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 this court.
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.
The lower court in dealing with the complaint in its judgment, after reproducing the excerpt of the judgment of the trial court on the voluntariliness of Exhibits B and C, referred to the case of Olalekan v. State 2001 92 LRCN 3385 and had this to say.
“Going by this authority, it is clear that all the hue and cry by the learned counsel for the Appellant on the evaluation of the probative nature of the confessional statements are neither here nor there as neither the Appellant nor his counsel raised any objection to the tendering of the said statements. They also took the risk of not proffering any defence after the close of prosecution’s case and they ought to stand or fall with the evidence led by the witnesses for the prosecution and his confessional statements which were positive, unequivocal and consistent and point irresistibly to the conclusion that he, along with three Namujere brothers now at large conspired to go and rob one Natata Muhammed while they were armed with guns and cutlasses on the night of 13/9/2006.
The Appellant should later count himself lucky that the PW4 faltered in respect of the stolen sum of money and the extreme magnanimity exhibited by the lower court in finding him guilty of a lesser offence.”
I endorse the above treatment of this point by the lower court. It suffices for the purpose of determining the voluntariliness and probative value to be ascribed to Exhibits B and C. The case of R. v. Bodom & Ors 1935 2 WACA 390 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. I will now look at the evidence and the content of the Exhibits.
In Exhibit ‘B’ can be found the following:-
“It was Manu Nomujere ‘m’ that brought the idea, he told us that the man had just been paid for (sic) his daughter (sic) dowry and we planned the robbery on that same date at about 1700 hrs. The guns belong to Manu Nomujere ‘m’, while the cutlass belongs to me.”
P. W. 4 in his evidence said:-
“I know the accused person…On that day at about 8 pm. Four persons including the accused person came to my house. All of them were armed with cutlasses… On sighting my neigbours the two people outside the house took to their heels. So also was the person who entered my room. The accused person also attempted to run away but my neighbours pursued him and he was arrested.”
The above evidence on the cutlass was not controverted in the course of cross examination.
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 in the case.
What is vital evidence? An 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 C which I have already reproduced above are unequivocal, 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. See Obue v. State 1976 2 SC 141, Sadau v. State 1968 All W.L.R. 124 and The State v. John Ogbubunjo & Anor 2001 12 NWLR part 678 page 576.
It is not incumbent on the prosecution to call every eye witness to testify, in order to discharge the onus 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.
To be continued