ADELAJA v. STATE (2020)

ADELAJA v. STATE

(2020)LCN/14386(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/IB/70C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

JIDE ADELAJA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

DEFINITION OF THE CRIMINAL OFFENCE OF CONSPIRACY

Conspiracy has been defined in a number of decided cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by unlawful means. The two or more persons must be found to have combined in order to secure a conviction. See the following cases:-NWOSU VS. STATE (2004) 15 NWLR PART 897 PAGE 466.
– BUSARI VS THE STATE (2015) LPELR – 24279 (SC).
– GARBA VS C.O.P. (2007) 16 NWLR PART 1060 PAGE 378 AT 400.
– USUFU VS STATE (2007) 1 NWLR PART 1020 PAGE 94.
– ABDULLAHI VS STATE (2008) 17 NWLR PART 1115 PAGE 203 AT 221.
The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain Criminal Act of the parties concerned. See the following cases:-
– TANKO VS STATE (SUPRA).
– PATRICK NJOVENS VS STATE (1973) 5 SC PAGE 17.
– KAYODE VS STATE (2016) 7 NWLR PART 1511 PAGE 199.
– KOLAWOLE VS STATE (2015) 8 NWLR PART 1460 PAGE 134. PER BADA, J.C.A.

WHETHER R NOT WHERE TWO OR MORE PERSONS ACTING IN CONCERT ATTACKS A VICTIM, EVERY ONE OF THEM IS LIABLE FOR THE CONSEQUENCES OF THE ACT

It is trite law that once attack on a victim is made by two or more persons acting in concert and in furtherance of their common intention each and every one of them is liable for consequences of the act. In such a case it does not matter which of the accused did what.
See the following cases:-
– NWANKWOALA VS. STATE (2006) 14 NWLR PART 1000 PAGE 663.
– ALARAPE VS. STATE (2001) 2 S.C. PAGE 114.
– ADIO & ANOTHER VS. THE STATE (1986) NWLR PART 24 PAGE 581.
– OKPULOR VS. THE STATE (1990) 12 SCNJ PAGE 71 AT 76.
– OBIDIKE VS. STATE (2014) ALL FWLR PART 733 PAGE 1899. PER BADA, J.C.A.

WHETHER OR NOT THE ENDORSEMENT OF A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON BY A SUPERIOR POLICE OFFICER ALONE CAN NOT INVALIDATE A CONFESSIONAL STATEMENT

It is the law that the endorsement of Confessional Statement of an accused person by a Superior Police Officer alone cannot invalidate a Confessional Statement. This is because the attestation of an accused person’s Confessional Statement before a Superior police Officer is in compliance with the Judge’s rules. It is an administrative practice and not a legal requirement. Therefore its non-compliance will not render inadmissible the Confessional Statement.
See the following cases:- EHIMIYEIN VS STATE (2016) 16 NWLR PART 1538 PAGE 173.
– EDHIGERE VS THE STATE (1996) 8 NWLR PART 464 PAGE 1.
– TOPE VS STATE (2019) LPELR – 47837 (SC). PER BADA, J.C.A.

DUTY OF THE COURT WHERE AN ACCUSED PERSON RETRACTS HIS CONFESSIONAL STATEMENT

Where an accused person retracts his confession at the trial, the trial Court will look for some evidence outside the confession which would make the confession probable.
See the following cases:-
– KOPA VS. STATE (1971) 1 ALL NLR PAGE 151.
– ONOCHIE VS. THE REPUBLIC (1966) NMLR PAGE 307.
– ONUOHA VS. STATE (1987) 4 NWLR PART 65 PAGE 331.
– OLATUNBOSUN VS. THE STATE (2013) 17 NWLR PART 1382 PAGE 167.
The principles which the Court should consider in determining whether or not to believe and act on the confession which the accused person resiled from are:-
(a) Whether there is anything outside the confession which may validate its veracity.
(b) Whether the confessional statement is corroborated in any way.
(c) Whether the contents of the confessional statement, if tested, could be true.
(d) Whether the defendant had the opportunity of committing the alleged offence.
(e) Whether the Confession is possible.
(f) The consistency of the said Confession with other facts that have been established.
See the following cases:- – OSETOLA & ANOTHER VS THE STATE (2012) 17 NWLR PART 1329 PAGE 251 – AKPAN VS THE STATE (2001) 15 NWLR PART 737 PAGE 745. PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of High Court of Ogun State, Ijebu-Ode Judicial Division in charge No: HCJ/22C/2017 Between: THE STATE VS JIDE ADELAJA delivered on the 24th day of January, 2019 wherein the Appellant was found guilty of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R II Laws of the Federation of Nigeria 2004 and he was consequently sentenced to death.

Briefly the facts of the case are that on 27/11/2015 at about 10.30pm, the Appellant and others now at large robbed the complainant PW2 of her 2080 Itel Phone and cash sum of N4,000.00. PW2 alerted her neighbour PW1 who in turn alerted others.

Members of the Community apprehended the Appellant while the others at large fled and escaped. A Pistol was found when the Appellant attempted to discard it at point of his arrest. The Appellant was asked to pick up the Pistol with his hand and he did so. The Policemen on patrol were alerted and the Appellant was handed over to them.

A case of Conspiracy to commit Armed

Robbery and Armed Robbery was incidented against the Appellant. This led to the trial of the Appellant who was subsequently convicted for the offence of Conspiracy to commit Armed Robbery and Armed Robbery.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.

The learned Counsel for the Appellant formulated four (4) issues for the determination of this appeal. The said issues are reproduced as follows:-
“(1) Whether the trial Court ought not to discharge the Appellant on his defence of Alibi (Distilled from Ground 1).
(2) Whether the trial Court was right to ascribe any weighty or probative value on Exhibits “B” and “D”, the extra Judicial Confessional Statements of the Appellant and rely on it to convict and sentence the Appellant. (Distilled from Grounds 2 and 4).
(3) Whether the Prosecution proved the offence of Conspiracy to commit Armed Robbery against Appellant beyond reasonable doubt. (Distilled from Grounds 3 and 5).
(4) Whether from the totality of the evidence before the trial Court, the Prosecution can be said to prove the offence of armed robbery

against the Appellant beyond reasonable doubt. (Distilled from Grounds 3 and 6).”

The learned Counsel for the Respondent in his own case formulated three issues for the determination of the appeal. The said issues are also reproduced as follows:-
“(1) Whether from the totality of the evidence adduced at the trial, the Respondent proved the charge of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act No 18 of 2011.
(2) Whether the trial Court was right in relying on Exhibits “B” and “D” the extra judicial statements of the Appellant in convicting the Appellant in this case.
(3) Whether the trial Court was right in rejecting the defence of Alibi raised by the Appellant in this case.”

At the hearing of this appeal on 28/5/2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 24/1/2019. The notice of appeal was filed on 12/2/2019 and an amended notice of appeal was filed on 5/3/2020. It was deemed as properly filed and served on

28/5/2020. The record of appeal was transmitted on 27/2/2019 to this Court while the Appellant’s brief of argument was filed on 5/3/2019. The Appellant’s reply brief filed on 6/2/2020 was deemed as properly filed and served on 28/5/2020.

The learned Counsel for the Appellant adopted and relied on the two briefs as his argument in urging that the appeal be allowed.
On his own part, the learned Counsel for the Respondent referred to the Respondent’s brief of argument filed on 16/1/2020.
He adopted and relied on the said Respondent’s brief of argument as his argument in urging that the appeal be dismissed.

I have perused the issues formulated for the determination of the appeal by Counsel for both parties. The issues are similar, but I will rely on the issues formulated for the determination of the appeal on behalf of the Appellant.

ISSUES FOR THE DETERMINATION OF THE APPEAL.
(1) Whether the trial Court ought not to discharge Appellant on his defence of Alibi (Distilled from Ground 1).
(2) Whether the trial Court was right in relying on Exhibits “B” and “D”, the extra-judicial

Confessional Statements of the Appellant in convicting him in this case (Distilled from Grounds 2 and 4).
(3) Whether Prosecution proved the offence of Conspiracy to commit Armed Robbery against Appellant beyond reasonable doubt (Distilled from Ground 5.
(4) Whether from the totality of the evidence before the trial Court, Prosecution can be said to prove the offence of Armed Robbery against the Appellant beyond reasonable doubt. (Distilled from Ground 6).

ISSUE Nos 3 and 4 (TAKEN TOGETHER)
The learned Counsel for the Appellant submitted that the Prosecution did not prove the offence of Conspiracy to commit Armed Robbery against the Appellant beyond reasonable doubt as required by law.

He went further in his submission that in proving the offence of Conspiracy to commit Armed Robbery, Prosecution must establish that Appellant agreed with one or more persons to rob PW2 that the said Robbery was carried out in furtherance with the said agreement and that the Appellant participated in the Robbery.
He relied on the following cases:-
– ADESINA KAYODE VS STATE (2016) LPELR – 40028 (SC).
– WAHEED BALOGUN VS STATE (2018)

LPELR- 44215 (SC)
– OBIAKOR VS STATE (2002) 10 NWLR PART 776 PAGE 612.
– ABDULAHI VS STATE (2008) 17 NWLR PART 1115 PAGE 203 AT 221
– SALAWU VS STATE (2011) 18 NWLR PART 1279 PAGE 580
– DARLINGTON VS FRN (2017) 15 NWLR PART 1589 PAGE 433 AT 489.

It was submitted further that:
(1) The Prosecution failed to prove that the Appellant agreed with his two friends that ran away or others to rob PW2.
(2) That the Robbery was Armed Robbery and
(3) That Appellant participated in the Robbery.

It was also submitted on behalf of the Appellant that for the Prosecution to prove its case, the standard of proof required is proof beyond reasonable doubt. He went further that the evidence of the Prosecution must be precise and clear and must not be vague, uncertain, improbable or an affront to intelligence. He relied on Section 135 of the Evidence Act and the following cases:-
– ALABI VS THE STATE (1993) 7 NWLR PART 307 PAGE 511 AT 531.
– SOLOLA VS THE STATE (2005) 5 SC PART 1 PAGE 135.

The learned Counsel for the Appellant contended that the case of Prosecution is fraught with fundamental irregularities,

conflicts and contradiction especially on Locus Criminis.
He relied on the following cases – AMADI VS STATE (1993) 8 NWLR PART 314 PAGE 644.
– ALOR VS STATE (1997) 1 NWLR PART 501 PAGE 511.

On Armed Robbery, learned Counsel for the Appellant stated that Armed Robbery is the Robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. He contended that the essential ingredients of Armed robbery which must be proved conjunctively are that:-
(i) There was a Robbery incident or series of armed Robbery.
(ii) The Robbery or each of the Robberies was an Armed Robbery or carried out with offensive weapon.
(iii) The accused person was the Armed Robber or one of the Armed Robbers.
He relied on the following –BLACK’S LAW DICTIONARY, NINTH EDITION PAGE 1442.
– AKEEM AGBOOLA VS THE STATE (2013) LPELR – 20652 (SC).
– ONYENYE VS STATE (2012) 15 NWLR PART 1324 PAGE 586.
– CHUKWUEMEKA AGUGUA VS. STATE (2017) 10 NWLR PART 1573 PAGE 254 AT 275.
– ALABI VS. STATE (1993) 7 NWLR PART 307 PAGE 511.
– BELLO VS. STATE (2007) 10 NWLR PART 1043 PAGE

564.
– ABIODUN ADEKOYA VS. STATE (2017) 7 NWLR PART 1565 PAGE 343 AT 355 (SC).

The Learned Counsel for the Appellant also submitted that the testimony of PW2 and Exhibit “C” which the learned trial Judge relied upon as proof that there was Armed Robbery are vague, uncertain and improbable.
It was also argued on behalf of the Appellant that Exhibit “A” – the locally made gun did not establish that there was Armed Robbery.

It was contended on behalf of the Appellant that the trial Court based its Judgment on the fact that Appellant took part in the robbery on the premise that –
(1) PW2 knew the attackers
(2) That Appellant was caught close to the scene of crime
(3) PW4 fixed Appellant at the scene of crime when he was arrested.

It was finally submitted on behalf of the Appellant that in criminal cases, Prosecution must endeavor to prove its case beyond reasonable doubt with the vital and relevant evidence it can produce. He relied on the following cases – BELLO SHURUMO VS. THE STATE (2010) LPELR – 3069 (SC).
– EMMANUEL OCHIBA VS. THE STATE (2011) LPELR – 8245 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel for the Appellant argued that none of the items stolen i.e. the phone and N4000.00 was found with the Appellant when he was arrested. He therefore urged that the decision of the trial Court be set aside and acquit the Appellant.

In his response to the submission of learned Counsel for the Appellant, the learned Counsel for the Respondent submitted that under Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria, every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. He went further that the burden of proof is on the Prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. He relied on the following cases:-
– RICHARD VS. STATE (2013) LPELR – 22137 AT 14-15 PARAGRAPHS E – A.
– ALABI VS. THE STATE (1993) 7 NWLR PART 307 PAGE 511 AT 531.
– SOLOLA VS. THE STATE (2005) 5 SC. PART 1 PAGE 135.
– ADEROUNMU VS. FRN (2019) LPELR – 46923 (CA).
– JIMOH VS. THE STATE (2018) LPELR – 44074 (CA).

The learned Counsel for the Respondent submitted that the offence of Conspiracy to commit Armed Robbery and Armed Robbery was proved against the Appellant beyond reasonable doubt and that the trial Court was right in convicting the Appellant.

In proof of the first ingredient of the offence of armed Robbery, he referred to the testimony of PW2 who gave eye witness account of how she was robbed at gun point by the Appellant.

He contended that PW1 and PW2 were not challenged, shaken or discredited, and that the failure to cross examine the witnesses on the vital and damaging evidence amounts to an admission.
He relied on the case of – OFORLETE VS. STATE (2000) FWLR PART 12 PAGE 2081 AT 2098 – 2099 PARAGRAPHS H – A.

It was submitted further on behalf of the Respondent that the evidence of PW2 who is the victim of the offence and eye witness to the offence linked the Appellant to the offence of Armed Robbery.

The learned Counsel for the Respondent also referred to Exhibits “B” and “D” which are Confessional Statements of the Appellant. It was submitted that the confession is voluntary, direct, positive and unequivocal and that

it is sufficient to ground a conviction.
He relied on the following cases:- DIBIE VS. STATE (2007) ALL FWLR PART 363 PAGE 83 AT 114 PARAGRAPHS C – D.
– NWACHUKWU VS. STATE (2007) ALL FWLR PART 390 PAGE 1380.

It was submitted further on behalf of the Respondent that based on the totality of evidence led by the Respondent at the trial, that the trial Judge was right when he held that the Prosecution succeeded in proving all the ingredients of the offence of Armed Robbery against the Appellant and accordingly convicted him and sentenced him to death.

On Conspiracy, learned Counsel defined it as an agreement between two or more persons to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act by unlawful means.
He relied on the following cases:- NWABU VS. I.G.P. (2019) LPELR – 47604 CA.
– USUFU VS. STATE (2007) 1 NWLR PART 1020 PAGE 94.
– ABDULLAHI VS. STATE (2008) 17 NWLR PART 1115 PAGE 203 AT 221.
– ADEOYE VS. STATE (2019) LPELR – 472 (CA).

– TANKO VS. STATE (2008) 16 NWLR PART 1114 AT 597 AT 622.

It was also submitted that the Appellant is caught by Section 8 of the Criminal Code. The following cases were relied upon:-
– NWANKWOALA VS. STATE (2006) 14 NWLR PART 1000 PAGE 663.
– ADIO & ANOTHER VS. THE STATE (1986) NWLR PART 24 PAGE 581.
– ALARAPE VS. STATE (2001) 5 NWLR PART 705 PAGE 79.
– OBIDIKE VS. STATE (2014) LPELR – 22590 (SC).
– OKPULOR VS. THE STATE (1990) 12 S.C.N.J PAGE 71 AT 76.

The learned Counsel for the Respondent referred to the evidence of PW1 and PW2 along with Exhibits “B” and “D” and he submitted that the Respondent proved the ingredients of the offence of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.

ISSUES 1 AND 2 (TAKEN TOGETHER)
On the issue whether the trial Court ought not to discharge Appellant on his defence of Alibi, the learned Counsel for the Appellant stated that by the Alibi, the Appellant sought to establish that he was not at the scene of crime and therefore not in a position to commit or participate in the crime.
He relied on the following cases:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

– IDEMUDIA VS. STATE (2015) 17 NWLR PART 1488 PAGE 375.
– CHIEF VINCENT DURU (ALIAS OTOKOTO) VS. THE STATE (2017) 4 NWLR PART 1554 PAGE 1 AT 31.
– STANLEY ANIETIE UDO VS. THE STATE (2017) 3 NWLR PART 1553 PAGE 411 AT 417 (SC).

He submitted that the defence of Alibi must be raised promptly by an accused person so as to afford the police the opportunity to investigate it. It was contended on behalf of the Appellant that where the defence of Alibi is apparent, the Appellant did not need to raise it again but that the police should investigate it, and failure of the police to investigate and check its reliability would raise reasonable doubt in the mind of the Court.
He relied on the following cases:-
– ONAFOWOKAN VS. THE STATE (1987) 3 NWLR PART 61 PAGE 538 (SC).
– ADEDEJI VS. STATE (1971) 1 ALL NLR PAGE 75.
– SALAMI VS. STATE (1988) 3 NWLR PART 85 PAGE 670.
– OMOTOLA VS. STATE (2009) 7 NWLR PART 1139 PAGE 148.
– EBENEHI VS. STATE (2009) 6 NWLR PART 1138 PAGE 431.
– NDUKWE VS. STATE (2009) 7 NWLR PART 1139 PAGE 43.

The learned Counsel for the Appellant submitted that Appellant could not have voluntarily

mentioned the issue of Alibi in Exhibits “B” and “D” because the testimony therein was obtained on demand and through question and answer. He submitted further that Exhibits “B” and “D” could not be said to be voluntarily made.

He submitted that neither 2080 itel phone nor any cash sum allegedly stolen was found on the Appellant when he was arrested at his arena shortly after the alleged incident. He went further that where there is any doubt in the case of the Prosecution, such doubt must be resolved in favour of the accused.
He relied on the following cases:-OKONJI VS. THE STATE (1987) 1 NWLR PART 52 PAGE 959.
– IGABELE VS. STATE (2006) 6 NWLR PART 975 PAGE 100 AT 127.
– HAPPY KINGSLEY IDEMUDIA VS. THE STATE (2015) LPELR – 24835.
He urged that the Appellant ought to be discharged on the defence of Alibi.

On the issue whether the trial Court was right to ascribe any weight or probative value to Exhibits B and D, i.e the extra-judicial confessional statement of the Appellant and relied on it to convict and sentence the Appellant. The learned Counsel for the Appellant submitted

that where there is doubt as to the voluntariness or truth of a confessional statement as in this case, the absence of endorsement by a Superior Police Officer greatly affects the weight to be placed on the statement. He went further that a Judge would be in error to attach probative value to such an unendorsed confessional statement by a Superior Police Officer.
He relied on the following cases:-
– ALARAPE VS THE STATE (2001) 5 NWLR PART 705 PAGE 79.
– UMORU ABDULLAHI VS THE STATE (2016) LPELR – 43753 (CA)

Learned Counsel for the Appellant urged the Court to note that Exhibit “D” which was volunteered in Yoruba, recorded in English and interpreted in English by PW3, Sergent Alabi Akintunde on the 28th of November, 2015 was countersigned 10 days after it was made on the 8th of December, 2015 by SP Adolf Ogwu.

He contended that the issue of counter signing was an afterthought and that Exhibit D was made by the Police without any endorsement of a superior Police Officer.

It was submitted on behalf of the Appellant that the trial Court ought not to attach any probative value to the unendorsed Exhibit D, let alone

convict based on it where there is doubt as to its voluntariness.
The following cases were relied upon.
– ALARAPE VS THE STATE (SUPRA)
– UMORU ABDULLAHI VS THE STATE (SUPRA).

It was also submitted on behalf of the Appellant that Exhibits “B” and “D” are not confessional. The learned Counsel for the Appellant stated that before a statement can be said to be a confession, it must be free, voluntary, direct, positive, properly proved and consistent with the other ascertained facts which has been proved. The following cases were relied upon:-
– MAJOR BELLO M. MAGAJI VS THE NIGERIAN ARMY (2008) LPELR – 1814 (SC)
– HARUNA YAMUSA VS THE STATE (2014) LPELR – 23251 (CA)
– EMEKA KURE VS THE STATE (2014) LPELR – 23467 (CA)
– AKPAN VS THE STATE (1990) 7 NWLR PART 160 PAGE 101
– IBEME VS STATE (2013) 10 NWLR PART 1362 PAGE 333
– OKOH VS STATE (2014) 8 NWLR PART 1410 PAGE 502.

It was submitted further on behalf of the Appellant that where an accused person gives evidence which is contrary to the extra-judicial statement, the Court should take the extra-judicial statement with

caution.

The following cases were relied upon – EGBOGHONOME VS. STATE (1993) 7 NWLR PART 306 PAGE 303.
– OSUAGWU VS. THE STATE (2013) 5 NWLR PART 1347 PAGE 360.
– ISONG VS. STATE (2016) 14 NWLR PART 1531, PAGE 96.

The learned Counsel for the Appellant finally urged this Court to hold that the trial Court was wrong to ascribe any weight or probative value to Exhibits “B” and “D”.

The learned Counsel for the Respondent in his response to the submission of Counsel for the Appellant submitted that the Appellant did not raise the defence of Alibi timeously in his statement to the police i.e. Exhibits “B” and “D”.
He relied on – SANNI VS. STATE (2019) LPELR – 47418 (SC).

It was contended that the burden of proving the Alibi rest on the accused person who must adduce sufficient evidence at where he was at the material time the offence was committed.
He relied on the following cases:- OCHEMAJE VS. STATE (2008) 15 NWLR PART 1109 PAGE 57 AT 90.
– TANKO VS. STATE (2008) 16 NWLR PART 114 PAGE 597 AT 622.

The learned Counsel for the Respondent referred to the

evidence of PW1, PW2 and PW4, he then submitted that the Respondent led credible evidence which was accepted by the trial Court which evidence fixed the accused person at the scene of crime. He urged this Court not to disturb the findings of the trial Court.
Concerning the issue on Exhibits “B” and “D” i.e the extra Judicial Confessional Statements of the Appellant. It was contended on behalf of the Appellant that absence of endorsement of Exhibits “B” and “D” by a Superior Police Officer will affect the weight to be placed on the Exhibits.

The learned Counsel for the Respondent submitted that non-endorsement of Exhibits “B” and “D” by a Superior Police Officer will not affect the probative value and weight placed on it by the trial Judge.

She went further in her submission that the Appellant did not object to the tendering of Exhibits “B” and “D” at the trial on the grounds of torture, threat or undue influence, but he denied making the statement to the Police. She went further that this amounts to retraction and that retraction or denial of a

Confessional Statement does not affect its admissibility.
She relied on the following cases:
– ALAO VS STATE (2019) LPELR – 47856 (SC)
– SUNDAY VS STATE (2019) LPELR – 47598 (CA)
– AKPAN VS STATE (1992) LPELR – 381 (SC) PAGE 36.

It was also submitted on behalf of the Respondent that a voluntary Confessional Statement which is direct, positive and unequivocal by itself without any other evidence is sufficient to ground a conviction. The learned Counsel for the Respondent relied upon the following cases:-
– DIBIE VS STATE (2007) ALL FWLR PART 363 PAGE 83 AT 114 PARAGRAPHS C-D
– NWACHUKWU VS STATE (2007) ALL FWLR PART 390 PAGE 1380 AT 1406 and 1409.

She finally urged this Court to hold that the respondent proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt against the Appellant.

In the Appellant’s reply brief of argument, the Appellant formulated another four issues which he argued instead of replying to the Respondent’s brief. I am of the view that the Appellant substantially re-argued the case. The purpose of a reply brief is to answer

arguments in the Respondent’s brief which were not part of the Appellant’s brief. A reply brief as the name implies is not an opportunity to re-argue the Appellant’s case.
In the circumstance, the reply brief is hereby discountenanced. See – ONWUDIWE VS F.R.N. (2006) 10 NWLR PART 988 PAGE 382.

RESOLUTION.
It is settled law that in Criminal trials, the Prosecution must prove its case against the accused beyond reasonable doubt. See SECTION 135 (1) OF THE EVIDENCE ACT 2011.
But proof beyond reasonable doubt does not mean that the Prosecution must prove its case with precision nor does it mean proof beyond any shadow of doubt.
The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with.
See the following cases:-
– SOLOLA VS. THE STATE (2005) 5 SC PART 1 PAGE 135.
– ALABI VS. THE STATE (1993) 7 NWLR PART 307 PAGE 511 AT 531.
– ABIRIFON VS. THE STATE (2013) 13 NWLR PART 1372 PAGE 619.
– HASSAN VS. STATE (2017) 5 NWLR PART 1557 PAGE 1.
– SMART VS. STATE (2016) 9 NWLR PART 1517 PAGE 447.

In the discharge of the onus of proof, there are three (3) ways by which the Prosecution can prove the commission of a crime.
(1) By Confessional Statement
(2) By evidence of eye witnesses i.e. direct witness
(3) By circumstantial evidence where confessional statement is lacking.
See the following cases:-
– OKASHETU VS. STATE (2016) LPELR – 40611 (SC).
– EMEKA VS. STATE (2001) 6 SCNJ PAGE 259.
– ABIRIFON VS. STATE (SUPRA).
– OMOREGIE VS. STATE (2017) LPELR – 42466 (SC).

At the trial Court, the Appellant was charged, arraigned and convicted on a two counts charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6 (b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R II, Laws of the Federation of Nigeria 2004.

The learned Counsel for the Appellant contended that the Prosecution did not prove the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt as required by the Law.

The learned Counsel for the Respondent on the other hand contended that case of Conspiracy to commit Armed

Robbery and Armed Robbery was proved beyond reasonable doubt and that the trial Court was right in convicting the Appellant.

It is trite that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following ingredients of the offence beyond reasonable doubt.
(1) That there was a Robbery or series of Robberies.
(2) The said Robbery was an Armed Robbery.
(3) That the Appellant was one of those who took part in the Armed Robbery.
See the following cases:-
– DAWAI VS. STATE (2017) LPELR – 43835 (SC).
– OSUAGWU VS. STATE (2016) 16 NWLR PART 153 PAGE 31.
– ATTAH VS. STATE (2010) 10 NWLR PART 1205 PAGE 190.
– OLAYINKA VS. STATE (2007) 13 NWLR PART 1040 PAGE 56 AT 582 – 583 PARAGRAPHS G – A.

In proof of the charge against the Appellant PW2 (the victim) testified as follows:-
PW2
“Witness sworn on the Holy Quran and states in Yoruba Language. My names are Kehinde Bello, I live at No. 19, Laregbe Street, Ijebu-Ode, I am a trader. Yes I know the accused person in the dock. On the 27th November 2015, on that day, I

was coming from my brother’s house, then I saw three people come to me, they brought out a gun and asked me to bring my phone and the N4,000.00 which I had on me, this was about 10.30p.m. They collected the items and they used the butt of the gun to knock my head, I cried to the house and I called Waidi Bayo, they took me to where the three people normally stay. I know them very well and I know where they hang out, Waidi followed me there, when we got there, two of them had ran away at the time but we were able to approach one of them and this is the accused person. As he was arrested, he fell down, a gun fell down from his body, it turned out to be the gun with which I was hit, we then called the Policemen from Igbeba Police Station. I was told to go to the hospital for medical report, I went to the General Hospital and I obtained a medical report. I had met the accused before the day of the incident, I know them because they used to come to our house.”
PW1 also testified as follows:-
1st C.W, i.e 1st PW
Witness sworn on the Holy Quran and states in Yoruba Language. My names are Waheed Bayo. I live at No. 19, Larebe Street, Olisa,

Ijebu-Ode. I work as a Panel Beater. I know the accused person, I know Kehinde Bello, we live in the same house. On the 27th November, 2015, I was already asleep in the night, I heard noise from my sleep. One Kehinde Bello shouted Ole!, Ole!!, Ole!!! i.e. Thieves! Thieves!! thieves!!! I woke up and I woke the remaining neighbours that I heard noise from Kehinde’s room, we all came outside and started shouting thieves! thieves!! we woke up the neighbourhood. Kehinde lives within my compound at the back, when I saw her I asked her what happened, she said that some people robbed her, when she said this, I asked her where she was coming from at that hour of the night, she said that she was coming from her brother who was ill, then we went outside, we started shouting thieves! thieves! for the neighbours to come out. She was asked where her brother’s place was, she replied that it was the following street. We went towards the place with the Community, we then saw three people in one corner standing, she pointed at them that they were the ones who attacked her, we pursued them, they ran away.
The present accused person fell down, we were able

to catch him. The others ran away. We arrested him from where he fell and dragged him back to our street. The present accused person was the person that fell and we arrested. While we were dragging him away, he threw something, we heard a sound the others shouted that he had thrown something, we asked him what and he replied that it was a knife. We went there to check and we discovered that it was a gun that he threw, we asked him to pick up the gun himself, he did, we called the Vigilante in Itoro, they arrested him to their custody. Shortly after, the Police patrolled our area, we reported the incident to them, they asked us where the accused was, we informed them that Itoro. The Police then went to Itoro to arrest him.”

The evidence of PW2 set out above showed eye witness account of how she was robbed at gun point by the Appellant and his gang members on 27/11/2015.
The evidence of PW1 referred to as CW1 was set out above and the evidence of PW1 and PW2 were never shaken or discredited under cross examination.

It is clear that from the testimony of PW2 and PW1 set out above, the 1st, 2nd and 3rd ingredients of the offence of Armed

Robbery were proved.
The evidence of PW2 and PW1 set out above showed that the Appellant was armed with gun along with his gang members.
PW2 stated categorically that the Appellant and others at large hit her on the head with the butt of the gun.

The evidence of PW1 gave a vivid account of how the Appellant was arrested and Exhibit “A” recovered from him.
Furthermore, the evidence of PW1 and PW2 set out above also showed that the Appellant participated actively in the robbery of PW2 on 27/11/2015.
The Appellant also made confessional statements i.e. Exhibits “B” and “D” which were admitted in evidence by the trial Court.

It is trite that a voluntary Confessional Statement which is direct, positive and unequivocal by itself without any other evidence is sufficient to ground a conviction. See the following cases:- DIBIE VS STATE (SUPRA)
– NWACHUKWU VS STATE (SUPRA)

The Prosecution also tendered in evidence Exhibit “C” i.e. the Medical Report in proving the injury inflicted on PW2 by the Appellant and others at large when they hit her on the head with the butt of Exhibit

“A”i.e the locally made pistol.
The learned Counsel for the Appellant contended that Exhibit C, the Medical Report was tendered in evidence by PW4 Inspector Akintode Alabi who is not a pathologist or a Medical Doctor and that his evidence amounts to hearsay and therefore inadmissible, but I am of the view that the Medical Report Exhibit “C” was issued by a Government Medical Doctor at the Ogun State General Hospital. Furthermore it is settled law that it is not compulsory that a Medical Doctor or maker of Medical Report must testify in all cases where evidence of Medical Report is required.
By virtue of the Provision of Section 55 (1) of the Evidence Act, Exhibit “C” issued by a Medical Doctor in the service of Ogun State is sufficient of the facts stated therein.
See the following cases:-
– STATE VS. AJIE (2000) 11 NWLR PART 678 PAGE 434 AT 446 PARAGRAPHS E – F.
– OLADAPO VS. STATE (2013) LPELR – 22092 (CA).
– SOLOMON EHOT VS. THE STATE (1993) 4 NWLR PART 290 PAGE 644 AT 657 AND 658.

Consequent upon the foregoing, I am of the view that based upon the totality of the evidence

presented at the trial by the parties, the trial Judge was right when he held that the Prosecution succeeded in proving all the ingredients of the offence of Armed Robbery against the accused person/Appellant and accordingly convicted him and sentenced him to death.
The Appellant was also convicted of the offence of Conspiracy to commit Armed Robbery.

of the parties concerned. See the following cases:-
– TANKO VS STATE (SUPRA).
– PATRICK NJOVENS VS STATE (1973) 5 SC PAGE 17.
– KAYODE VS STATE (2016) 7 NWLR PART 1511 PAGE 199.
– KOLAWOLE VS STATE (2015) 8 NWLR PART 1460 PAGE 134.

A careful reading of the testimony of PW2 set out earlier in this Judgment showed that there was conspiracy between the Appellant and the others at large to commit the crime.
The testimony of PW2 and the Confessional Statements of the Appellant showed that there is meeting of the minds among the Appellant and his colleagues to commit the offence.
The testimony of the PW1 set out earlier in the Judgment stated among others that:-
“…we went towards the place with the Community, we then saw three people in one corner standing, she pointed at them that they were the ones who attacked her, we pursued them, they ran away. The present accused person fell down, we were able to catch him. The others ran away…”
The Appellant in this case is caught by Section 8 of the Criminal Code which provides thus:-
“When two or more persons form a common intention to prosecute an unlawful

purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
It is trite law that once attack on a victim is made by two or more persons acting in concert and in furtherance of their common intention each and every one of them is liable for consequences of the act. In such a case it does not matter which of the accused did what.
See the following cases:-
– NWANKWOALA VS. STATE (2006) 14 NWLR PART 1000 PAGE 663.
– ALARAPE VS. STATE (2001) 2 S.C. PAGE 114.
– ADIO & ANOTHER VS. THE STATE (1986) NWLR PART 24 PAGE 581.
– OKPULOR VS. THE STATE (1990) 12 SCNJ PAGE 71 AT 76.
– OBIDIKE VS. STATE (2014) ALL FWLR PART 733 PAGE 1899.
As stated earlier in this Judgment, the Appellant participated actively in the Armed Robbery. The presence of the Appellant at the scene of crime is beyond mere coincidence. The Appellant is caught by Section 8 of the Criminal Code.

The PW2 in her testimony stated that the sum of N4000.00 and an

itel Handset were stolen from her during the robbery. The PW2 was not cross examined or challenged on the damaging evidence she gave. The failure to cross examine her on the damaging evidence amounts to an admission.
See – OFORLETE VS STATE (2000) FWLR PART 12 PAGE 2081 AT 2098 – 2099 PARAGRAPHS H-A.

In view of the foregoing, I am convinced that the Respondent proved the ingredients of the offence of conspiracy against the Appellant beyond reasonable doubt.

Now coming to the issue on whether the trial Court was right to ascribe any weight or probative value on Exhibits “B” and “D” i.e the extra Judicial Confessional Statement of the Appellant and relied on it to convict and sentence the Appellant.

The Appellant contended that he did not make Exhibits “B” and “D”. It was also submitted on behalf of the Appellant that the absence of endorsement of Exhibits “B” and “D” by the Superior Police Officer greatly affects the weight to be placed on the Exhibits.

It is the law that the endorsement of Confessional Statement of an accused person by a Superior Police

Officer alone cannot invalidate a Confessional Statement. This is because the attestation of an accused person’s Confessional Statement before a Superior police Officer is in compliance with the Judge’s rules. It is an administrative practice and not a legal requirement. Therefore its non-compliance will not render inadmissible the Confessional Statement.
See the following cases:- EHIMIYEIN VS STATE (2016) 16 NWLR PART 1538 PAGE 173.
– EDHIGERE VS THE STATE (1996) 8 NWLR PART 464 PAGE 1.
– TOPE VS STATE (2019) LPELR – 47837 (SC).
I am therefore of the view that non endorsement of Exhibits “B” and “D” by a Superior Police Officer will not affect the probative value and weight placed on it by the trial Judge.

Furthermore, the Appellant denied making any statement to the police. See page 52 lines 31 – 34 of the Record of Appeal. What the Appellant did amounts to retraction of the confessional statement.
But it is the law that retraction or denial of a confessional statement (as the Appellant did during his defence at the trial Court) does not affect its admissibility.

Where an accused person retracts his confession at the trial, the trial Court will look for some evidence outside the confession which would make the confession probable.
See the following cases:-
– KOPA VS. STATE (1971) 1 ALL NLR PAGE 151.
– ONOCHIE VS. THE REPUBLIC (1966) NMLR PAGE 307.
– ONUOHA VS. STATE (1987) 4 NWLR PART 65 PAGE 331.
– OLATUNBOSUN VS. THE STATE (2013) 17 NWLR PART 1382 PAGE 167.
The principles which the Court should consider in determining whether or not to believe and act on the confession which the accused person resiled from are:-
(a) Whether there is anything outside the confession which may validate its veracity.
(b) Whether the confessional statement is corroborated in any way.
(c) Whether the contents of the confessional statement, if tested, could be true.
(d) Whether the defendant had the opportunity of committing the alleged offence.
(e) Whether the Confession is possible.
(f) The consistency of the said Confession with other facts that have been established.
See the following cases:-
– OSETOLA & ANOTHER VS THE STATE (2012) 17 NWLR PART 1329 PAGE 251

– AKPAN VS THE STATE (2001) 15 NWLR PART 737 PAGE 745.

The trial Court properly and rightly applied the principles enumerated above to the facts of this case and came to the right conclusion having regard to the cogency of the Confessions and other circumstances which corroborated them. (See page 87 lines 13-31 and page 88 lines 1-19 of the Record of Appeal).

Furthermore, it is trite that a voluntary Confessional Statement which is direct, positive and unequivocal by itself without any other evidence is sufficient to ground a conviction. See- DIBIE VS STATE (SUPRA).
– NWACHUKWU VS STATE (SUPRA).

Consequent upon the foregoing, I am of the view that the trial Court was right to have ascribed probative value on Exhibits “B” and “D” i.e. the Extra Judicial Confessional Statements of the Appellant and relied on it to convict and sentence the Appellant.

On the issue of Alibi, the learned Counsel for the Appellant contended that the Police promptly saw the Alibi of the Appellant at the place of his arrest and that the Police had ample opportunity to investigate it.
It is the law that the defence of Alibi is a fundamental

defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere, other than the scene of the crime and could not consequently have been involved in the commission of the crime with which he is charged.
If an Alibi is raised promptly, the burden is on the Prosecution to investigate and disprove the Alibi. The failure to investigate and check the reliability of the Alibi would raise reasonable doubt in the mind of the Court or Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. See SHEHU VS THE STATE (2010) ALL FWLR PART 523 PAGE 1841. But where the Prosecution is able to show that the accused person was at the scene of crime when the offence was committed by an unquestionable evidence then the defence of Alibi will not avail him. See – EGWUMI VS. STATE (2013) 13 NWLR PART 1372 PAGE 525.
In this appeal under consideration, the Appellant did not raise the defence of Alibi timeously in his statements

to the police i.e. Exhibits “B” and “D” therefore there is nothing for the police to investigate.
The learned trial Judge in his Judgment observed as follows at page 90 lines 10 – 17 of the record of appeal as follows:-
“…the accused person was caught close to the scene of crime and the accused person tried to raise an alibi during trial, it is trite that the defence of alibi must be raised promptly by an accused person so as to afford the police an opportunity to investigate it, more so the statement of the accused person upon arrest is that his father was late and his mother stayed in Abeokuta (Exhibit D) the defence of alibi raised at the trial is therefore an afterthought, moreover the evidence of PW1 and that of PW4 fixed the accused person at the scene of crime when he was arrested.” The evidence of the Appellant and his cross examination at pages 54 and 55 of the Record of Appeal are contradictory on the Issue of Alibi.
While at page 54 lines 23 – 26 the Appellant stated as follows:-
“I was at home with my parents when they came to arrest me. Four of us live with

our parents, my siblings and my mum and dad, my parents told me that they will meet me at the station…”
Under cross examination at page 55 lines 19 – 27 of the record of appeal, the Appellant stated that his mother lives in Abeokuta while his father died in 2014 i.e. a year before his arrest.
In view of the foregoing, the trial Court was therefore right in rejecting the evidence of Alibi given by the Appellant in the course of the trial as an afterthought because the evidence is unreliable and contradictory.
In this case the evidence of the Prosecution fixed the Appellant at the scene of crime, his Alibi is therefore demolished. See the case of OCHEMAJE VS. STATE (SUPRA).
It is trite that an accused person who wants to rely on Alibi must raise the issue timeously. That is, he must inform the police at the earliest opportunity of his where about at the time the offence was committed so as to give the Prosecution the opportunity to investigate the Alibi.
This is because Alibi is a matter within the peculiar knowledge of the Accused/Appellant. He must be specific and precise in terms of the place he was and the person or

persons he was with and what he was doing there at the material time.
See – AYAN VS. STATE (2013) 15 NWLR PART 1376 PAGE 34.
– DOGO VS. STATE (2001) 3 NWLR PART 699 PAGE 192.
– OCHEMAJE VS. STATE (SUPRA).
– TANKO VS. STATE (SUPRA).

Finally, consequent upon the evidence of PW1 and PW2 earlier set out in this Judgment as well as the evidence of the other witnesses contained in the record of appeal. I am of the view that the Respondent has proved all the ingredients of the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.
Therefore issue numbers 1, 2, 3 and 4 are resolved in favour of the Respondent and against the Appellant.
This appeal lacks merit and it is hereby dismissed.

The Judgment of the lower Court in Charge No: HCJ/22C/2017 – THE STATE VS. JIDE ADELAJA delivered on the 24th day of January 2019 is hereby affirmed.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.

The evidence as revealed by the records is that, there was indeed an act of

armed robbery against the PW2 on the 27/11/2015. When the Appellant was arrested, he was found to be in possession of a pistol, which he tried to discard. He was arrested very close to the scene of crime, immediately after the act of robbery. The law is that, where an accused is arrested at the scene of the offence, immediately after the commission of the offence, thereby fixing him to the scene, any plea of alibi cannot avail him. See State V. Ekanem (2017) 4 NWLR (pt. 1554) 84 at 107 and Njovens V. State (1973) N.N.L.R.76 at 93. In the case of Victor V. State (2013) LPELR 20749 (SC), the Supreme Court per Onnoghen, JSC (as he then was) held as follows:
“In a situation such as in this case where an accused is fixed at the scene of crime, the fact that the Police/Prosecution did not investigate the claim of alibi is very much irrelevant as such investigation would be a complete waste of time; a worthless exercise. It follows therefore that where an accused is fixed at the scene of crime, which evidence is believed by the trial Court, no reasonable doubt is created for the benefit of the accused if the Police failed and/or neglected to investigate a

claim of an alleged alibi put up by the defence/accused person.”

It is for the above reason and the other reasons in the lead judgment that I agreed that this appeal lacks merit. It is hereby dismissed.

FOLASADE AYODEJI OJO, J.C.A.: I had the privilege of reading in draft the lead judgment delivered by my learned brother, Jimi Olukayode Bada, JCA. His Lordship has considered exhaustively and resolved all issues in this appeal. I only wish to comment on the defence of alibi which the Appellant sought to rely on. Where the defence of alibi is raised, all the Accused Person is saying is that he was at a particular place away from the scene of crime. In other words, the Accused Person is saying that he did not participate in the commission of the offence with which he was charged. The law is trite that where an Accused Person seeks to rely on the defence of alibi, it must be raised timeously. The appropriate place to raise it is while in the interrogation room. The burden to prove he was not at the scene of crime is on the Accused Person. He must give sufficient particulars of his where about and those present with him at the time of commission of

the offence. It is only when he gives sufficient particulars timeously that the burden shifts to the Police to investigate the alibi. The Police cannot investigate an alibi raised at the trial or during trial. See NDIDI V. STATE (2007) 13 NWLR (PT. 1052) 633; SALE V. STATE (2020) 1 NWLR (PT. 1705) 205; AKEEM V. STATE (2017) 18 NWLR (PT. 1597) 311; ODU V. STATE (2001) 10 NWLR (PT. 772) 668. In NOMAYO V. STATE (2019) 1 NWLR (PT. 1653) 262 @ 274, PARAS. D-F, the Supreme Court, per Peter-Odili, JSC held as follows:
“I would restate that the principles guiding the use of alibi as a defence open to an accused such as the appellant herein is not an automatic exculpatory defence such that once raised, the accused gets off. The reasons are that an alibi must be put across timeously or at the first opportunity with details for the prosecution or the police to investigate to confirm the truth thereof or that the alibi did not hold water. However, that an alibi was raised by an accused and not investigated does not translate to the alibi’s acceptance as gospel if the evidence adduced by the prosecution at the trial effectively fixed or apprehended the

accused at the scene of crime at the material time. When that happens the alibi is demolished or destroyed and becomes ineffectual or of no use.”
In the instant appeal, the Appellant did not raise the defence of alibi while in the interrogation room. It is also not contained in his extra-judicial statement. Furthermore, he was properly identified by the nominal complainant who testified as PW2 whose evidence is that the Appellant and his accomplices were persons she knew prior to the date of the incident. She gave eye witness account of how she was robbed at gun point by the Appellant. It is clear beyond any peradventure that credible evidence from the Prosecution witness fixed the Appellant at the scene of the robbery. The alibi of the Appellant was fully demolished by the Prosecution. It is therefore ineffectual and of no use. I agree with my learned brother that the Prosecution proved all ingredients of the offence beyond reasonable doubt.

Premised on the foregoing and the more detailed reasons advanced in the lead Judgement, I also hold that this appeal is devoid of merit. It is accordingly dismissed.

Appearances:

FRANCIS OGUNBOWALE with him, ANTHONY BANJO and MR. VALENTINE OGUNBOWALE For Appellant(s)

A.M. ADEBAYO Chief State Counsel, Ministry of Justice, Ogun State For Respondent(s)