ANIMASHAUN v. STATE (2020)

ANIMASHAUN v. STATE

(2020)LCN/14227(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/IB/368C/2016

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

IBRAHIM ANIMASHAUN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

The law is trite and of general application in all criminal proceedings such as this that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden is squarely on the shoulders of the prosecution and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the Apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entitles. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the Apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him. PER TOBI, J.C.A.

WHETHER OR NOT WHERE THERE IS ANY DOUBT ARISING FROM THE CASE OF THE PROSECUTION AS TO THE GUILT OF THE ACCUSED, SUCH DOUBT WILL BE RESOLVED IN FAVOR OF THE ACCUSED

The law is settled on the facts that if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt that will have such effect must be material doubt that is doubt that relates to the ingredient of the offence the accused is charged with. See FRN vs. Abubakar (2019) LPELR-46533 (SC); Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530. This is based on the premise that it is better for 10 guilty people to go free than for 1 innocent person to be conviction and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78. PER TOBI, J.C.A.

THE INGREDIENTS FOR THE OFFENCE OF ARMED ROBBERY

The Appellant was charged along with other two accused person who is not part of this appeal for Conspiracy and Armed Robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions ) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The ingredients of the offences are stated therein in the law under which the Appellant is charged and in a line of cases. For the offence of armed robbery, the Respondent in the Lower Court must prove the three ingredients of the offence. These are:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt. 1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123. PER TOBI, J.C.A.

WHAT IS A “CONFESSIONAL STATEMENT”

A confessional statement is an admission made by a person charged with an offence stating and suggesting that he committed the offence. See Yunusa vs. State (2017) LPELR-43014 (CA); Daropale vs. State (2013) LPELR-20676 (CA). In Adekoya vs. State (2012) 3 S.C (Pt. III) 36, the Apex Court per Adekeye, JSC held:
“By virtue of Section 27 (1) and (2) of the Evidence Act, a confessional statement is a statement is a statement by an accused person charged with an offence stating that he committed the offence. The position of the law is that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without ant corroborative evidence so long as the Court is satisfied with the truth. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court.
Queen v. Itule (1961) 2 SCNLR pg. 183.
Solola v. State (2005) 11NWLR (Pt. 937) pg. 460
Nwaeze v. State (1996) 2 NWLR (Pt. 428) pg. 1.
Akinmoju v. State 4 SC (Pt. 1) pg. 64.” PER TOBI, J.C.A.

THE TEST IN DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT

The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
1. Whether there is anything outside the confession to show that it is true,
2. Whether the statement is corroborated, no matter how slight.
3. Whether the facts contained therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
6. Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: lkpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): Before this Court is an appeal against the judgment of 8/10/2015 in Charge No. I/27C/2013 – The State vs. Biola Ayoola & & Ors., delivered by Hon. Justice E. Esan of the High Court of Oyo State sitting in Ibadan. The facts of the case at the Lower Court is that the Appellant (then third accused person) together with two other accused were arraigned on a six-count charge of conspiracy and armed robbery. After trial and address of counsel, the Lower Court in its judgment found on pages 141-190 of the records found the 2nd accused person guilty of receiving the proceeds of armed robbery and sentenced him to 3 years imprisonment with Hard Labour while the 1st Accused person and the Appellant were found guilty of conspiracy and armed robbery and sentenced to death by hanging. The Lower Court on page 50 of the judgment (page 190 of the record of appeal) held thus:
“The 1st and 3rd accused persons are each found guilty as charged while the 2nd accused person is found not guilty of Conspiracy and Armed Robbery. Rather he is found guilty of receiving the proceeds of Armed Robbery.

Sentence:-
(1) The sentence of the Court on the 1st and 3rd accused respectively is that they be hanged by the neck until they are dead and may the Lord have mercy on their souls.
(2) The 2nd accused is sentenced to 3 I.H.L.”

The Appellant, the 3rd Accused at the Lower Court dissatisfied with the judgment of the Lower Court has filed this appeal to ventilate his anger. The notice of appeal dated and filed 6/1/2016 is found on pages 191-193 of the record of appeal containing two grounds:
Ground 1:
The Learned Trial Judge erred in law on the degree of evidence required to sustain the inferences/findings of conspiracy as charged.
Ground 2:
The verdict of the Learned Trial Judge is altogether unreasonable, unwarranted and cannot be supported having regards to the evidence.

The Appellant brief dated and filed 10/9/2019 was settled by Adebayo Adegbite Esq. In its brief, counsel raised a lone issue for determination viz.
Whether having regard to the facts and circumstances of this case, the Prosecution could be said to have proved its case against the Appellant beyond reasonable doubt.

On the sole issue for

determination, learned counsel started with submitting that in a case like this, the proper step to take is to consider first, the substantive offence of armed robbery and thereafter proceed to consider the offence of conspiracy to rob as charged citing Lukmon Osetola & Anor vs. The State (2012) 12 SCM (Pt. 2) 347 at 363. With respect to the ingredients of the offence of armed robbery counsel relied on Bozin vs. State (1985) 2 NWLR (Pt. 8) 465 at 467; Nwokocha vs. A.G. Imo State (2016) 8 SCM 99 at 99; Adekoya vs. State (2012) 6 SCM 58; Ikaria vs. State (2012) 12 SCM (Pt. 2) 249 at 272-273.

It is the argument of counsel that none of the alleged victims of the charge, that is, PW1, PW2, and PW3 in their evidence in Court linked the Appellant, either directly or inferentially, to the armed robbery incidents as contained in the charge. It is further argued that PW4 who in his attempt at linking the Appellant to the series of robberies tendered Exhibits D, D1, and D2 which counsel submitted is not admissible since the recorder was not called to testify before the Lower Court. Most importantly, counsel submitted that this Court should not give force to

Exhibits D, D1 and D2 because as shown from the record of appeal, the Appellant gave evidence in Yoruba Language and Exhibits D, D1 and D2 were all submitted to Femi in Yoruba Language but were recorded in English Language. On the strength of the above and relying on Ifaramoye vs. The State (2017) 4 SCM 1 at 35-36. The exhibits, counsel submitted at best is documentary evidence and should be expunged relying on FRN vs. Usman (2012) 8 NWLR (Pt. 1308) 141 at 159; Olalekan vs. State (2001) 18 NWLR (Pt. 746) 818.

As to the non-objection of the counsel to the Appellant when at the time Exhibits D, D1 and D2 were tendered, referring toIfaramoye vs. The State (supra); Suberu vs. The State (2010) 5 SCM 215 at 233; Monday Nwaeze vs. The State (1996) 2 NWLR (Pt. 428) 1 at 20, learned counsel submitted that whether the Appellant objected to it or not, the Court can expunge an inadmissible document at any stage of the trial citing Alli vs. Audu (1996) 6 NWLR (Pt. 453) 148 at 167. Since Exhibits D, D1, and D2 are inadmissible, corroborating such document does not arise and the evidence of DW1 and DW2 cannot corroborate the mentioned Exhibits. It is the contention

of counsel that aside Exhibits D, D1, and D2 there is no other evidence, directly or circumstantial, linking the Appellant to the offences charged and that his conviction rooted in suspicion and not borne out of evidence, should not be allowed to stand. Learned counsel relied onGabriel Okeke vs. The State (1999) 2 NWLR (Pt. 590) 240. With Exhibits D, D1, and D2 expunged, there will be no legally admissible evidence to support the conviction of the Appellant relying on Nsofor vs. State (2002) 10 NWLR (Pt. 775) 274 he submitted that the conviction should be quashed. On the evidence and statement of a co-accused, it is submitted by counsel that being a joint trial, the rule is that the confessional statement of an accused shall not be taken into consideration by a Court against a co-accused unless the co-accused adopts same by words or conduct and there was no such adoption in this case. He relied on Section 29(4) of the Evidence Act, 2011 and Titilayo vs. State (1998) 2 NWLR (Pt. 537) 235.

On the defence of Alibi, it is the submission of counsel that Exhibits D, D1, and D2 cannot stand in the light of the alibi made by the Appellant and confirmed by DW1

and DW4. It is the contention of counsel that in the absence of any concrete evidence from the Prosecution, destroying the defence of alibi made by the Appellant, the conviction cannot stand as doubt is created on whether the Appellant actually committed the offences charged. Counsel submitted that the attitude of the Lower Court on the defence of alibi raised by the Appellant was not encouraging as the Court did not consider in detail the defence of alibi. The prosecution has failed to discharge the obligation placed on it to prove beyond reasonable doubt the offence of conspiracy and armed robbery and therefore the conviction of the Appellant cannot stand. Learned counsel cited Kim vs. State (1992) 4 NWLR (Pt. 233) 17; Bozin vs. State (supra); Nwokocha vs. A.G. Imo State (supra); Ikem vs. The State (1985) 1 NWLR (Pt. 2) 378 at 389; Ofor & Anor vs. The Queen (1955) 15 WACA 4; Oladejo vs. State (1994) 8 NWLR (Pt. 348) 101 at 121.

In conclusion, counsel relying on Section 138 of Evidence Act and Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria submits that in the instant case, the prosecution cannot be said to have proved its

case beyond reasonable doubt before the Lower Court and that the Court has a duty to act on concrete evidence as proffered and not on the suspicion which has no place in our criminal jurisprudence. He made reference to Saidu vs. State (1982) 4 SC 41. On this note and relying on the authority of Chief Olabode George vs. FRN (2013) 12 SCM (Pt. 2) 525 urged this Court to allow the appeal of the Appellant, set aside his conviction, discharge and acquit the Appellant.

The Respondent brief filed 24/2/2020 deemed on 28/4/2020 was settled by S.O. Adeoye Esq, the Director of Public Prosecution (DPP), Oyo State Ministry of Justice. Learned DPP also raised a sole issue for determination which in substance is the same in all material respect with the Appellant’s issue for determination. For completeness, I will reproduce the sole issue of the Respondent:
Whether by the nature of evidence placed before the Trial Court the prosecution has not proved the guilt of the Appellant beyond reasonable doubt for the offence of conspiracy to commit armed robbery and armed robbery.

On its lone issue for determination, the Respondent in summary submitted that the

Lower Court was right in the conviction of the Appellant in the light of the evidence before it. Learned Counsel relying on Anyim vs. The State (2019) 2-3 SC (Pt. II) 68 at 92; Bozin vs. State (1985) 5 SC (Reprint) 106; Alabi vs. The State (1993) 7 NWLR (Pt. 307) 551; Olayinka vs. The State (2007) 4 SC (Pt. 1) 210; Osetola vs. The State (2012) 6 SC (Pt. IV) 148 reiterated the ingredients of the offence the Appellant is charged with which the prosecution is to establish. It is the submission of Respondent counsel that there are several methods by which the prosecution may discharge the burden of proof placed upon it by law and that any one of or a combination of the methods may be relied upon by the prosecution in order to discharge the burden of proof placed on it citing State vs. Ibrahim (2019) 1 SC (Pt. II) 155 at 173; Abirifon vs. The State (2013) 6-7 SC (Pt. III) 81; Ogunkayode vs. The Queen (1954) 14 WACA 458; Egboghonome vs. The State (1993) 7 NWLR (Pt. 306) 383; Igabele vs. The State (2006) 2 SC (Pt. II) 61; Adio vs. The State (1986) 6 SC (Reprint) 83. It is the further submission of the Respondent counsel that there is no contention regarding the first

and second ingredients of the offence as there was robbery or series of robberies and the robbery or series of robberies was/were armed robbery or robberies, thereby leaving out the contention of the third ingredient of the offence of armed robbery, that is, whether the Appellant was linked with the commission of the offence by the evidence on the record.

It is argued by counsel that where in a criminal matter investigation is conducted by a team of policemen, the leader of the team can tender any statement made by any member of his team and as such a statement will not be inadmissible solely on that ground that the statement was not tendered by the person who took the statement citing Oguno & Anor vs. The State (2013) 3-4 SC (Pt. III) 1 at 36. It is therefore the submission of counsel that the Appellant counsel misconceived the law in the circumstances of the appeal and therefore his submissions against Exhibits D, D1, and D2 should be discountenanced.

Relying on Section 198(2) of the Evidence Act, 2011, it is the position of counsel that generally a confession of an accused person can only be used against the interest of the person that made it

but that however, where the incriminating evidence against the accused person comes from his co-accused, the Court, in a joint trial, will be at liberty to rely on the incriminating evidence of the co-accused. Counsel cited State vs. Ibrahim (supra). It is the further submission of counsel that against the backdrop of the argument of the Appellant counsel, the evidence of a co-accused if believed and corroborated is sufficient to justify a conviction of a co-accused, as the co-accused will be treated in the same manner as an accomplice. He made reference to Okoro vs. The State (1988) 12 SC (Pt. II) 83 at 114-115. It is the further submission of counsel that the oral testimonies of both the 1st and 2nd Accused persons at different parts of the record corroborates Exhibits D, D1, and D2.

On the defence of alibi, it is the submission of counsel that the Appellant failed to raise the defence at the earliest opportunity as required by law. It is the argument of counsel that the Appellant has not denied making Exhibits D, D1 and D2, yet, he did not raise the alibi in any of the exhibits and only got to raise it for the first time during his defence through

Exhibit H. Learned Counsel relied on Okoduwa vs. The State (1988) 4 SC (Reprint) 171; Ozaki vs. The State (1990) 1 SC 109; Yanor vs. The State (1965) 1 All NLR 193 SC. It is the submission of counsel that the defence of Alibi cannot avail the Appellant in the light of Exhibit D, D1 and D2, the confessional statement of the Appellant and further the as at the date counts 5 and 6 were alleged to have been committed, the Appellant had returned from Mecca. Citing Patrick Njovens & Ors vs. The State (1973) 5 SC 17; Lawali vs. The State (2019) 1 SC (Pt. III) 105 at 130. It is the submission of Respondent counsel that there is enough evidence on the record to link the commission of armed robbery with the Appellant.

On conspiracy, it is the submission of the Respondent counsel that conspiracy as contained in the charge is proved against the Appellant given the nature of the evidence on the record. He relied on Oduneye vs. The State (2001) 1 SCC (Pt. I) 1 at 44. Relying on Balogun vs. A.G Ogun State (2002) 2 SC (Pt. II) 89 at 96-97; Obiakor vs. The State (2002) 6 SC (Pt. II) 33 at 39-40, it is the contention of counsel that conspiracy to commit an offence is

a separate and distinct offence and is independent of the actual commission of the offence to which the conspiracy is related. It is the submission of counsel that by Exhibits D, D1, and D2 which find incriminating corroboration from the oral evidence of the 1st and 2nd Accused person, the ingredient of the offence of Conspiracy has been established.

In conclusion, it is the submission of counsel that the prosecution was able to establish the offence of conspiracy to commit felony to wit armed robbery and armed robbery against the Appellant, beyond reasonable doubt. Relying on Section 135 of the Evidence Act Cap E14 Laws of the Federation of Nigeria 2004 (as amended) and the case of Danjuma vs. State (2019) 3 SC (Pt. II) 110 at 128 counsel urged this Court to dismiss the appeal, uphold the decision of the Learned Trial Judge and affirm the conviction of the Appellant.

The Appellant exercising his right of appeal filed a reply brief on 27/4/2020 which was deemed on 28/4/2020. Most of the arguments contained in the reply brief are arguments to strengthen the Appellant’s brief which negates against the essence of a reply brief. I will therefore

not repeat same.

The Appellant in this appeal is challenging his conviction for the offence of Conspiracy to commit Armed Robbery and the substantive offence of Armed Robbery. Based on the conviction he was sentenced to death by hanging. This Court as an Appellate Court needs to be very sure and certain that the Appellant is actually a participant either physically or aided the commission of the offence. This is so because the highest punishment for any offence is what the Lower Court has passed on the Appellant. To confirm or uphold the decision of the Lower Court, this Court must be certain that the Respondent had proved all the ingredients of the offences for which the Appellant was charged beyond reasonable doubt. I must hasten to add that there is no sentiment in law, the fact that the sentenced handed over to the Appellant is death sentence, this Court will not be sentimental about it. What is important is that, the Court must be sure without sentiment that based on the evidence before the Lower Court and the position of the law, the Appellant is deserving of the hangman.

Both counsel have raised a sole issue for determination which is

substantially the same. I will however adopt the Appellant issue for determination. For completeness, I hereby reproduce it for ease of reference:
Whether having regard to the facts and circumstances of this case, the Prosecution could be said to have proved its case against the Appellant beyond reasonable doubt.

To answer this question, which is the ultimate question in this appeal, I am inclined to take a little excursion to some general and trite legal principles which applicable will assist this Court towards deciding this appeal. The law is trite and of general application in all criminal proceedings such as this that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden is squarely on the shoulders of the prosecution and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the Apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden

which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is w+hat proof beyond reasonable doubt entitles. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the Apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC

thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the

case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The Learned Trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the

guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt This is a duty that the Respondent should prove at the Lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the

offence he is charged with. The law is settled on the facts that if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt that will have such effect must be material doubt that is doubt that relates to the ingredient of the offence the accused is charged with. See FRN vs. Abubakar (2019) LPELR-46533 (SC); Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530. This is based on the premise that it is better for 10 guilty people to go free than for 1 innocent person to be conviction and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78.

Before I turn this into a class on criminal law, it will be necessary at this stage to address the specific issues raised in this

appeal and the addresses by counsel in the various briefs. The Appellant was charged along with other two accused person who is not part of this appeal for Conspiracy and Armed Robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions ) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The ingredients of the offences are stated therein in the law under which the Appellant is charged and in a line of cases. For the offence of armed robbery, the Respondent in the Lower Court must prove the three ingredients of the offence. These are:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt. 1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123.

For the offence of Conspiracy, there must be an agreement, that is, the meeting of mind between two or more people to do an unlawful act or a lawful act by unlawful means. For this offence to be proved, the Respondent needs to prove that there was an

agreement between the Appellant and the other accused persons charged along with him or any other person to carry out the armed robbery. See Usman Kaza vs. The State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi vs. The State (2008) 4 FWLR (Pt. 443) 6531. In Kayode vs. The State (2016) 7 NWLR (Pt. 1511) 199, Ariwoola, JSC held :
“It is settled law that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether or not the accused persons had knowledge of its unlawfulness. See; Ikechukwu Okon Vs The State (2014), Clark Vs The State (1986) 4 NWLR (Pt.35) 381.”

The conviction of the Appellant by the Lower Court was based much more on Exhibits D, D1, and D2 which the Lower Court held were confessional statements. The main thrust of the Lower Court’s decision was that the exhibits were not objected to when they were tendered and as such they are admissible evidence which the Court could act on and did act on to convict the Appellant with adherence principle of passing the

statements through the veracity test. The Lower Court made this point in the judgment on pages 183-184 of the records (pages 43-44 of the judgment) thus:
“Clearly the statements or confessions of 3rd accused person show that he was the conduit pipe between the armed robbery gang and (the Abuja buyer) Biggie. He, the 3rd accused facilitated the sale of the vehicle to Biggie. It appears the 3rd accused was a mentor to the gang of robbers. The 3rd accused admitted in his statement that he controlled the gang. The 3rd accused aided and abetted the gang by his role. His involvement gave the gang the incentive or impetus to prosecute the crimes. In other words, the gang knew they had someone who encouraged them and ensure that they (sic) proceeds of the sale of the robbed vehicles were paid to them.
Not only that, the 3rd accused himself shared in the money i.e. proceeds of the sale of the vehicles obtained through armed robbery. He was always aware of any planned robbery. The position of the law is that the confession of accused if direct and positive duly made and satisfactorily proved is sufficient to ground a conviction. It is however desirable to

have, outside the confession, some evidence however slight which make it probable that they (sic) was true. See Emeka v State (supra).
In the instant case, the confession of the 3rd accused person was corroborated by the 2nd accused person who confirmed on oath that the cars that Ahlaji Biggie in Abuja, used to send him to collect were robbed vehicles in Ibadan… My settled view is that his confession on his role in the series of robberies is not only corroborated by independent piece of evidence, it is voluntary, direct, positive and unequivocal.”

The conviction of the Appellant is therefore based on the confessional statement of the Appellant, that is, Exhibits D, D1, and D2. It is true that when the statements were tendered in the proceedings of 11/7/2013, the Appellant did not raise objection to their admissibility. However in the proceedings of 21/10/2014 at page 97 of the records, the Appellant tried to put a dent on the viability and the efficacy of Exhibits D, D1, and D2 when he said it was a prepared statement that was brought to him to sign. Though the interaction was done in Yoruba, the statement written by Femi, a member of the

team that investigated the offence who was not called as a witness was written in English. This evidence places Exhibit D, D1, and D2 in a shaky position as to its authenticity or viability. Since the conviction of the Appellant is based on these documents, it becomes very important to examine the documents in details to know whether they are admissible and if so, how much of weight can be attached to them, in legal parlance what is the probative value that could be attached to them.

It must be stated from the onset that criminal liability can be established by direct evidence, circumstantial evidence, or by confessional statement. See Okeke vs. State (2019) LPELR-48507 (CA); Umar vs. State (2014) 6- (Pt. III7 S.C) 1. The prosecution can prove the criminal liability of an accused by any of those methods or a combination of the methods. From the record of appeal, it is not hard to hold that the prosecution, that is the Respondent seems to depend on confessional statement as the method it used to establish the guilt of the Appellant. The Lower Court was properly convinced that by the confessional statements of the Appellant, the Respondent had proved beyond

reasonable doubt the guilt of the Appellant for the offences he was charged. Is this true? That is what we will find out in this judgment.

In starting, I must say that Exhibits D and D1 qualify as confessional statements since they are statements made by the Appellant suggesting that he committed the offence but whether it has probative value is another. The law on confessional statement is clear. A confessional statement is an admission made by a person charged with an offence stating and suggesting that he committed the offence. See Yunusa vs. State (2017) LPELR-43014 (CA); Daropale vs. State (2013) LPELR-20676 (CA). In Adekoya vs. State (2012) 3 S.C (Pt. III) 36, the Apex Court per Adekeye, JSC held:
“By virtue of Section 27 (1) and (2) of the Evidence Act, a confessional statement is a statement is a statement by an accused person charged with an offence stating that he committed the offence. The position of the law is that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without ant corroborative evidence so long as the Court is satisfied with the truth. There is however

a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court.
Queen v. Itule (1961) 2 SCNLR pg. 183.
Solola v. State (2005) 11NWLR (Pt. 937) pg. 460
Nwaeze v. State (1996) 2 NWLR (Pt. 428) pg. 1.
Akinmoju v. State 4 SC (Pt. 1) pg. 64.”
On the face of it, Exhibits D and D1 are confessional statements but Exhibit D2 is not as it does not show any admission of any crime by the Appellant. At this stage, I will now examine Exhibit D and D1 to see whether any probative value can be attached to it as documents made by the Appellant admitting liability upon which the Lower Court convicted him. Let me start in the examination of the exhibits by cautioning myself that as an Appellate Court, I am not to interfere with the finding of facts of the Lower Court except if the finding of fact does not correspond with the evidence before the Court. In such a circumstance, the finding is said to be perverse and once it leads to miscarriage of justice, I can at that stage interfere with the finding of fact of the Lower Court. See Omomeji & Ors vs. Kolawole & Ors (2008) 4-5

S.C (Pt. II) 158; Odom & Ors vs. PDP & Ors (2015) ALL FWLR (Pt. 773) 1962.
From the record of appeal, as earlier mentioned, the Appellant did not object to the admissibility of the statements when they were tendered. This does not mean that the Appellant is foreclosed from raising any argument as to the weight to be attached to them as the law is trite that the admissibility of a document is one thing and the weight to be attached is another. See Iwowari-Gold & Anor vs. INEC & Ors (2019) LPELR-49205 (CA); N.O. Motanya & Ors vs. Elijah Elinwa & Ors (1994) 7 NWLR (Pt. 356) 252; Maku vs. Alhaji Tanko Al-Makura (2016) 5 NWLR (Pt. 1505) 201.
It is worthy of note that even at the stage of judgment a Court has the power to expunge any evidence or exhibit which was admitted during the trial if by law such a piece of evidence or such a document should not have been admitted in the first. See Magaji vs. Ogele (2012) LPELR-9476 (CA); Justus Nwabuoku & Ors vs. Francis Onwordi (2006) 5 S.C (Pt. III) 103.
Before I examine Exhibits D and D1 in some details, suffice to say that while I agree that a statement taken by a member of the

investigating police team can be tendered by any member of the team who is familiar with the signature of the recorder but when such a statement is challenged and the recorder is not in Court to join issues with the challenger, the evidence challenging the circumstance in which the document or exhibit was made will be taken by the Court as unchallenged evidence and the attendant attitude of the Court to unchallenged evidence will apply. The law is that such evidence will be deemed admitted and acted upon by a Court. See Kayili vs. Yilbuk & Ors (2015) 1-2 S.C 124; Mabamije vs. Otto (2016) LPELR-26058 (SC).
The Appellant retracted the statement but that in law does not affect the admissibility of the statement but rather it affects the probative value to be attached to the statement. See Legi Mohammed vs. The State (2019) LPELR-46420; The State vs. Ibrahim (2019) 9 NWLR (Pt. 1676) 137. A Court can however convict on a retracted statement if it is direct and positive which admits to the commission of the offence. See The State vs. Musa (2020) 2 NWLR (Pt. 1709) 499; Re – Osakwe (1994) 2 NWLR (Pt. 326) 273. In Busari vs. The State (2015) NWLR (Pt. 1452) 343,

the Apex Court drove home this point expressly in these words:
“A confessional statement does not become inadmissible or inapplicable merely because there is a subsequent retraction of the confession by its maker. A Court can convict on the retracted confessional statement of an accused person when it is satisfied that it was voluntarily made. But it is desirable to find outside the confession some evidence, be it slight of circumstances, which make it probable that the confession was true. Thus, if a confessional statement is retracted at the trial, the Judge should examine evidence led to see if there are circumstances which tend to establish that the confessional statement is true. Where there is independent evidence corroborating a retracted confessional statement, the trial Judge would be right to infer that the confessional statement was in fact made by the appellant and his attempt to retract the said statement at trial was a belated afterthought. A conviction on a retracted confessional statement would be sustained where independent evidence makes the confessional statement appear true and reliable.”
Similarly, the Supreme Court

held that conviction can be based on a retracted statement provided the Court can find evidence outside the retracted statement that points to the fact that the accused committed the offence. This was decided in the case of Adebayo Ojo vs. The State (2018) LPELR-44699 (SC) where the Apex Court per Nweze, JSC at pages 29-30 held:
“It is not the law that by resiling from his extra judicial confessional statement the appellant is automatically entitled to an acquittal. It is long settled that he can be convicted solely on his free confessional statement that is direct, positive and unequivocal. See Nwachukwu V. State (2002) LPELR-2084 (SC) and Rabi lsma’il v. The State (2011) LPELR-9352 (SC).
Over the years, however, the practice has evolved where, beyond the confessional statement of the accused, Courts ensure that other available evidence further establish the fact that the accused person indeed perpetrated the criminal act. See R V Sykes {1913) C.A.R. 233, Akpan v. The State (1992) LPELR-381 (SC) and Federal Republic of Nigeria v. Faith Iweka (2011) LPELR-9350 (SC).”
Having established that a Court can convict on a retracted

statement under certain conditions, at this state we need to examine Exhibits D and D1 to see whether any probative value can be attached to it. The Appellant had challenged the exhibits from the perspective that the statements were made already by one Femi whom he communicated with in Yoruba but the statement he signed was written in English. This dents the credibility of the statement particularly when there is no evidence on the other side challenging the evidence of the Appellant. In this circumstance, the Court ought to have deemed the evidence unchallenged and acted on same. See Goyang Kayili vs. Esly Yilbuk & Ors (2015) LPELR-24323 (SC); Ezechukwu & Anor vs. I.O.C. Onwuka (2016) 5 NWLR (Pt. 1506) 529. In Oyibo Iriri & Ors vs. Eseroraye Erhurhobara & Anor (1991) 1 S.C I, the Supreme Court Olatawura, JSC held:
“…. Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a Court of law can act on it and accept it as a true version of the case it seeks to support.”
Apart from that, let us even examine the documents. The Lower Court did not do that as shown from the judgment, I

have powers under Section 15 of the Court of Appeal Act, 2006 to carry out that duty.
In the light of the unchallenged evidence of the Appellant on page 97 of the records as mentioned above, I cannot give Exhibits D, D1, and D2 any probative value. To base the conviction of the Appellant on documents without probative value will amount to grave injustice. I am not prepared to do this. The exhibits were made on 17/12/2012. There is nothing in Exhibit D and D1 to show that the statement was recorded by anyone as the name of the recorder was not written therein. The unchallenged evidence of the Appellant showed that the interaction between him and Femi who took his statement was in Yoruba. The statement which purportedly is a product of that interaction is written in English. There is nothing to show that the statements were interpreted to him on the face of the Exhibits. In the place for an interpreter, it is the name of the Appellant that is written therein. The defect in Exhibit D2 is also not better than the other exhibits. That the statement was made in Yoruba was not disputed by the Respondent. Even if disputed it would not have held any water as the

evidence of the Appellant was taken in court on page 93 of the record in Yoruba. It does not add up that the Appellant spoke good English in making his statement but testified in Yoruba language in court. On the examination of the Exhibits, I make bold to say that the Lower Court was wrong to have attached any probative value to Exhibits D, D1, and D2 as the documents did not meet the requirement to be given probative value even if it passes the test of admissibility. It is immaterial in the circumstance whether the Appellant did not object to the tendering of the document when it was made by the Respondent.

Assuming I am wrong though not conceding, for Exhibits D, D1, and D2 to be the basis for the conviction of the Appellant as confessional statements, the Lower Court needed to pass the statement through the well-established veracity test. The law is trite, and it is this, a Court can convict on the confessional statement of an accused but such a statement must pass the veracity test otherwise it is advisable not to convict an accused person on the confession statement. This makes great sense because sometimes the way confessions are gotten from accused

persons by the police leaves more to be desired. To make assurance double sure, the law requires that a Court that wants to convict an accused based on a confessional statement must get evidence external or outside the confessional statement that suggests that the confession is true. This evidence must be independent of the confessional statement pointing to one fact that the confession is true and was actually made by the accused.
One or two case laws on this well-established principle of law will not be out of place. In Ifeanyi vs. FRN(2018) 11 NWLR (Pt. 1632) 164, the Apex Court stated the test that a confessional statement will be made to pass through before it can be relied upon to convict an accused person. The Supreme Court held:
“My Lords, it has been an established practice that an accused person (defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. Omoju v. FRN (2008) 2 SCNJ 197; Kaza v. The State (2008) 2 SCNJ, 375. However, where the accused

person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement does not IPSO FACTO render it inadmissible in evidence. See R. v. Itule (1961) All NLR 462; R. v. Sapale & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p. 431; Bature v. The State (1994) 1 NWLR (Pt.320) 267; Alarape v. The State (2001) 5 NWLR (Pt.705) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.
See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra);

Yesufu v. The State (supra). The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
1. Whether there is anything outside the confession to show that it is true,
2. Whether the statement is corroborated, no matter how slight.
3. Whether the facts contained therein, so far as can be tested, are true.
4. Whether the accused person had the opportunity of committing the offence.
5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
6. Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: lkpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR

(Pt.248) 439 at 460.”
In Bello vs. C.O.P (2018) 2 NWLR (Pt. 1603) 267, the Apex Court in similar fashion held:
“The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true. The test or determinants are: Whether there is anything outside the (a) confession to show that it is true; Whether the statement is corroborated, no (b) matter how slightly; Whether the facts contained therein, so far (c) as can be tested, are true; Whether the accused person had the (d) opportunity of committing the offence; Whether the confession of the accused (e) person was possible; Whether the confession was consistent with other facts, which have been ascertained (f) and proved in the matter. In the instant case, the Trial Court did not apply or comply with any of the above tests or determinants. It was therefore, not safe to convict and sentence the appellant as done by the Trial Court and affirmed by the Court of Appeal.”
See Ogedengbe vs. State (2014) 12 NWLR (Pt. 1421) 338.
I can go on and on as this principle

of law has been greeted with a lot of judicial pronouncement. I will just refer to one more case of this Court. That is the case of Danladi vs. State (2019) 16 NWLR (Pt. 1698) 342, this Court per Omoleye, JCA held:
“The Trial Court is enjoined to look outside the confessional statement of an accused person before it and not into it in order to determine its truth. In doing so, the Trial Court will examine other evidence to see if those other evidence corroborate the confessional statement. The Court must ask itself and resolve a number of questions which are:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved?
The Trial Court in resolving these questions need to fallback to the evidence of other witnesses in the case and such other documents or exhibits, if any, admitted in the

matter to find if they support the statement. The Court must state in its judgment how it arrived at its conclusion regarding the truth or falsity of the statement. The test of veracity involves the examination of other or outside evidence by comparing those evidence with the confessional statement before the Trial Court, to determine whether the confessional statement is credible or true. The examination also entails the consideration of other outside evidence as would lend credence to the confessional statement which is in contention. Unless the test is properly carried out, an accused cannot be convicted and sentenced based on such confessional statement.”

The Lower Court had no problem with the position of the law. The only challenge is whether the Lower Court properly applied the veracity test to Exhibits D, D1, and D2 before accepting them to convict the Appellant. From the judgment, apparently, the Lower Court used the evidence of the prosecution witnesses as the yardstick for the test. The Lower Court on page 44 of the judgment (page 184 of the records) held that the 2nd accused person confirmed that the cars that Alhaji Biggie in Abuja used to

send him to collect were robbed vehicles from Ibadan. I have gone through the evidence of 2nd accused in the Lower Court and cannot agree with the Court that the 2nd accused evidence satisfies the veracity test. It certainly does not. In his evidence he said he never knew the 3rd accused and met him for the first time after they were arrested. On the evidence of 1st accused, to the Lower Court, the fact that the 1st accused knew the 3rd accused before the incident is corroboration or sufficient in meeting the veracity test. With respect to His Lordship, I do not agree. In fact, I make bold to say that the Lower Court did not properly apply the test to the exhibits before convicting the Appellant based on them. In the whole evidence of the prosecution witnesses none of them mentioned the Appellant, the 3rd accused. The 2nd accused did not mention him. The evidence of the 1st accused in Court did not mention the Appellant as part of the armed robbery gang. The Appellant knows the 1st accused alright but he went on to explain the circumstance of their relationship which has no connection with robbery talkless of armed robbery. I have looked at all the evidence

before the Lower Court and come to the conclusion that if the Lower Court properly applied the veracity test, there was no way, the Court would have convicted the Appellant on the confessional statement. I cannot find anything outside the statement that shows that the Appellant participated in the robbery or even aided the commission of the robbery. There is also nothing to corroborate the confession. In fact, the confessional statement could not pass any of the veracity tests. There is nothing outside the so-called confession by the Appellant that suggests that he participated in the robbery. How the Lower Court came to the conclusion that he was the conduit pipe of the robbery and a mentor to the gang beats my imagination. There is no evidence whatsoever that suggests such a conclusion outside the statements which I have held above have no probative value. I hold that Exhibits D, D1, and D2 which is the basis of the conviction of the Appellant for the offence he is charged have no probative value and even if they did, their failure to pass the veracity test makes any conviction base on them improper and cannot be defended by any counsel in this appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Respondent submitted that the confessional statement of the 1st accused which incriminates the Appellant can corroborate the confessional statement of the Appellant. This submission has no backing of the law. The law is trite and settled, which is that, the statement of an accused person to the police is the only evidence against him and not evidence against the co-accused. See Ohuka vs. State (1988) 7 S.C (Pt. II) 25; Hassan vs. State (2017) 5 NWLR (Pt. 1557) 1; Yongo vs. COP (1992) 8 NWLR (Pt. 257) 36; Iliyasu Suberu vs. The State (2010) 2 FWLR (Pt. 523) 3741. In The State vs. Onyeukwu (2004) 14 NWLR (Pt. 893) 340, the Apex Court held:
“The evidence of an accused person in a criminal trial cannot be received as evidence either for or against another accused person, the reason being that otherwise there would be a great danger that one accused person would be tempted to exculpate himself at the expense of his co-accused. Thus, a statement of an accused person cannot be used as evidence against a co-accused, without corroboration. The evidence when not corroborated goes to no issue. And neither the evasiveness nor the brazen lies of a

co-accused would be an excuse for the prosecution to assume that the case has been proved beyond all reasonable doubt.”
The position of the law would have been different if the 1st accused gave evidence in line with the statement he made incriminating the Appellant in open Court as they were on trial together. See The State vs. Sani Ibrahim (2019) LPELR-47548. The point I am laboring to make here is that the statement of 1st accused person made to the Police cannot corroborate Exhibits D, D1, and D2.

The Respondent in the circumstance in my view did not prove its case beyond reasonable doubt against the Appellant both for Conspiracy for armed robbery and the substantive offence of armed robbery. The evidence of the Respondent is very weak and does not have the strength to hold the Appellant for any of the offences he is charged with. There is no evidence whichever way it is looked at to hold the Appellant guilty by the Lower Court for the offences he is charged. Exhibits D, D1, and D2 cannot be the foundation for the conviction of the Appellant as they lack probative value and even if I am generous to accord them probative value, they did not

pass the veracity test. I have no difficulty in holding that the Respondent failed to prove its case against the Appellant in the Lower Court.

Having so held that the Respondent was unable to prove its case against the Appellant beyond reasonable doubt, there will be no need to consider the Appellant’s defence of Alibi. For whatever it is worth, it is clear that the Appellant was out of Nigeria on the date the counts 1, 2, 3 and 4 were committed. The PW4 admitted that much. It does not appear that the police properly investigated it however since it has been admitted by PW4, it should really not be a serious issue. I agree with the position of the law as stated by the Respondent that for Alibi to avail the Appellant, he must disclose same at its earliest possible time so that it does not appear as after-thought. With the way the Police took the statement of Appellant, it will meet the tenet of justice to resolve the doubt whether he mentioned the fact that he traveled to Mecca between 23rd October to 10th November when the offences in counts 1, 2, 3 and 4 were allegedly committed in favour of the Appellant. This alibi suffices for counts 1, 2, 3 and 4.

When the offence in counts 5 and 6 were committed, there is no Alibi. So, the defence only covered counts 1, 2, 3 and 4.

The Lower Court in convicting the Appellant for Conspiracy to commit armed robbery and the substantive offence of armed robbery principally rested comfortably on Exhibits D, D1, and D2 to which the proper law was not applied to its admissibility and probative value. A Court needs to explore the whole length and breadth of the law before depriving a person of his liberty talkless of sentencing a person to death on evidence that cannot hold water. In the light of the evidence before it, the Lower Court should not have found the Appellant guilty. He is indeed very far from guilty. In the circumstance, I hold that this appeal has merit and it is allowed. The judgment of Hon. Justice E. Esan of the High Court of Oyo State sitting in Ibadan in Suit NO:I/27C/2013 as it relates to the Appellant is hereby set aside.

The verdict of guilty the Lower Court entered for the Appellant is hereby reversed. The Appellant is hereby found not guilty. He is discharged and acquitted for the offences of conspiracy to commit armed robbery and the

substantive offence of armed robbery.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother EBIOWEI TOBI JCA and I agree with the reasoning and conclusion therein that the appeal has merit and should be allowed. It is trite that the statement of a co-accused not adopted and repeated on oath in open Court cannot be used to convict an accused person. The confessional statement being inadmissible, the only other evidence being untenable in law, the conclusion is that the prosecution has not been able to prove that the Appellant committed armed robbery. The Appeal is allowed.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.

Appearances:

ADEGBITE ESQ., For Appellant(s)

N.A. ABIOLA ESQ., For Respondent(s)