FELIX v. STATE (2020)

FELIX v. STATE

(2020)LCN/14597(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/AK/263CA/2013

RATIO

PLEADINGS: ELEMENT TO DISCHARGE BURDEN OF PROOF IN ARMED ROBBERY MATTER.

It is important to point out at the outset that the settled position of the law is that the prosecution can discharge the burden of proof by any of three ways:-
a) Evidence of an eye witness;
b) The confessional statement of the accused and
c) Circumstantial evidence.
This means that the prosecution does not always need an eye witness evidence to convict an accused person. IGABELE V STATE (SUPRA). It is clear from the findings of the trial Court, especially at pages 117-120 of the record that the trial Court convicted the appellant on his retracted confessional statement. The learned trial judge had adequately and exhaustively considered the probative value of a retracted confessional statement. His Lordship properly satisfied herself using the six point principle set down by the Supreme Court in the cases of STEPHEN V STATE (1986) 5 NWLR, PT 46, 978 and MBENU V STATE (1988) 3 NWLR PT 84, 615:
1) Is there anything outside the confession to show that it is true?
2) Is it corroborated?
3) Are relevant statements made in it of facts true as far as they can be tested?
4) Did the accused person have the opportunity of committing the offence charged?
5) Is the confession possible?
6) Is the confession consistent with other facts which have been ascertained and have been proved?
See also the more recent apex Court cases of: OSENI V STATE (2012) 5 NWLR PT 1293, 351; ADESINA V STATE (2012) 14 NWLR, PT 1321, 429; UMAR V STATE (2018) 7 NWLR, PT 1617, 72 and TOBI V STATE (2019) LPELR-46537(SC). Per PATRICIA AJUMA MAHMOUD, J.C.A.

RATIO

PLEADINGS: WHEN AN ACCUSED BY HIS CONFESSIONAL STATEMENT PLACES HIMSELF AT THE SCENE OF CRIME AS ONE OF THE PARTICIPANTS IN THE COMMISSION OF THE OFFENCE, THE ISSUE OF IDENTIFICATION BECOMES OF NO MOMENT.

The trite position of the law is that when an accused by his confessional statement places himself at the scene of crime as one of the participants in the commission of the offence, the issue of identification becomes of no moment. It is a well established principle of criminal law that confession is the strongest evidence of guilt as what is admitted needs no further proof. Evidence of confession is a stronger evidence than eye witness evidence for as my learned brother, Elechi, JCA aptly frames it in DAVID V THE STATE (2019) LPELR – 47487(CA): “it comes from the horses mount”. The learned trial Court in the instant case found that Exhibit A6 was true and convicted the appellant based on it. The identity of the appellant as one of the robbers was therefore not in doubt. This is especially so as the learned trial judge complied with the six way test and relied on some evidence outside the confession that made it probable that the confession was true. The contention of the appellant in this case was principally that the complainant, PW3 never identified him. This is similar to the situation in ALAO V THE STATE (2019) LPELR-47856 (SC) where the appellant complained that he was never mentioned as one of those who took part in the commission of the crime. In dismissing the appeal, Bage, JSC held thus:
“…………. Moreso, the confessional statement shows clearly that he jointly participated in committing the offence that led to the death of the deceased person. The Appellant mentioned the name of other co-accused persons (Fatai Busari, Osuolale Mumuni Adisa and Sunday Okafor and himself) as members of the gang who came from Lagos to Ibadan and carried out the robbery that led to the death of the decease. HOW BEST TO IDENTIFY A SELF-CONFESSING ACCUSED PERSON OTHER THAN BY HIS SELF IDENTIFICATION?” (Emphasis mine)
See also LAWALI V THE STATE (2019) LPELR-46405 (SC); OLAOYE V THE STATE (2018) 8 NWLR, PT 1621, 281 and AFOLABI V STATE (2013) 13 NWLR, PT 1371, 292.
Based on these authorities I hold that the appellant having by Exhibit A6 identified himself with the commission of the act constituting the offence he was charged with, the question of his identity ceases to be a relevant fact in the consideration of this appeal. Per PATRICIA AJUMA MAHMOUD, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

KAYODE FELIX APPELANT(S)

And

THE STATE RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court sitting at Akure and delivered by Hon. Justice O. O. Akeredolu on the 20th day of March, 2013.

The appellant was along with three others arraigned and tried on a three count charge of conspiracy to commit armed robbery, armed robbery and receiving stolen property contrary to and punishable under SECTIONS 6(b), 1(2)(a) and 5 of the Robbery and Firearms (Special Provisions) Act, Cap RII, VOL 14 LFN, 2004. The case of the prosecution was that on or about the 12th November, 2011, some of the accused persons including the appellant while armed with knives and other dangerous weapons robbed one DR Obanoyen Ademola and his household of money, cell phones, laptops, palmtop, card readers, universal modem and other valuables. In proof of its case the prosecution called three witnesses and tendered nine exhibits.

The appellant denied the allegation and stated that his arrest was orchestrated by his former girl friend, one Bukola who wanted a refund of the money she gave him while they were still dating.

At the conclusion

of hearing and address of counsel, the lower Court in a considered judgment convicted the appellant for the offence of conspiracy to commit armed robbery and armed robbery and sentenced him to death.

The appellant being dissatisfied with this conviction and sentence appealed to this Court vide an Amended Notice of Appeal dated and filed on the 28/10/2014 and deemed on the 17/06/2015. It contained four grounds of appeal with their particulars as follows:
GROUND ONE
The decision of the High Court is unreasonable and cannot be supported having regards to the weight of evidence.
PARTICULARS
a. Failure of the prosecution to produce key witness as contained in PW3 evidence recognizing one of the accused persons.
b. That there are inconsistencies in the statements allegedly made by the prosecution,
c. That the prosecution has failed to prove the case against the Appellant beyond reasonable doubt.
d. Failure of the prosecution to tender stolen items.
e. Failure of the prosecution to produce the arms used in the robbery.
GROUND TWO
The Lower Court erred in law and misdirected itself when it convicted the Appellant

for the armed robbery contrary to Section 1[2][a] and Section 6[b] of the Robbery and Firearms [Special Provisions] Act CAP R11; Volume 14 Laws of the Federation of Nigeria 2004 when Court discountenance the testimony of the Appellant in its entirety.
PARTICULARS
a. The particulars of ground one above are hereby repeated.
b. Lower Court did not act on credible evidence in convicting and sentencing the Appellant for the offence charged.
c. The Court relied solely on the evidence of prosecution witnesses in convicting and sentencing the Appellant.
d. The Court held that there was no evidence to justify inconsistency in the oral and written testimony of the Appellant.
e. The Court failed to consider the inconsistencies in the confessional statement of the PW3 that he knew one of the armed robbery and his evidence that he did not know any of the Appellants during identification parade.
GROUND THREE
The learned trial Judge erred in law when it convicted the Appellant for the offence of armed robbery contrary to Section 1[2][a] and Section 6[b] of the Robbery and Firearms (Special Provisions] Act CAP R11; Volume 14 Laws of the Federation of Nigeria 2004

and sentenced the Appellant to death by hanging by the neck.
PARTICULARS
a. That the Appellant did not call Bukola as witness to testify that she had a relationship with the Appellant and that the relationship went sour after the Appellant bought a car.
b. That the Appellant failed to call his mother as witness to testify that she loaned him money to buy the car.
c. That the failure of the Appellant to admit that a robbery took place at Diamond bank makes the evidence of the prosecution credible
d. The Lower Court convicted and sentenced the Appellant to death by hanging without affording him the right of allocutus.
e. The findings and subsequent holding is perverse.
GROUND FOUR
The judgment is against the weight of evidence.

Both parties settled their briefs of argument. The appellant’s brief of argument dated and filed on the 8th day of December, 2015 was settled by MRS Adedoyin Rhodes-Vivour (now SAN). In it the appellant distilled the following two issues for determination:-
(1) Whether the prosecution discharged its burden of proof beyond reasonable doubt.
(2) Whether

in view of the Appellant’s right to fair hearing, the learned trial judge was right in proceeding to sentence the Appellant to death by hanging without affording him right of allocutus.

In arguing the appeal, MR O.I Tiwo of counsel holding the brief of Mrs Adedoyin Rhodes-Vivour, SAN, for the appellant adopted the brief as their legal arguments in support of the appeal. On issue (1), counsel submitted that the trial Court erred in law when he found the appellant guilty of armed robbery when in fact the prosecution failed to prove the offence of armed robbery against the appellant beyond reasonable doubt. That many unanswered questions in the testimony of the prosecution witnesses raised doubts about the involvement of the Appellant in the robbery attack on PW3; which doubt should have been resolved in favour of the appellant. Counsel referred to ONUOHA V STATE (1989) 2 NWLR, PT 101, 23 AT 38; CHUKWU V STATE (1996) 7 NWLR PT 463, 686, UMANI V STATE (1988) 2 SC, 88 and UDOSEN V STATE (2007) 4 NWLR, PT 1023, 125 AT 161.

Counsel also contested the identity of the appellant. Counsel contended that the appellant was not arrested at the scene of

crime. That when he along with other accused persons were paraded before PW3, he did not recognise them. That curiously and mysteriously the evidence of the prosecution was that the accused persons started begging PW3 that they were the ones who robbed him. That even though the appellant and his co-accused were arrested for the robbery in Diamond Bank but were never charged with that offence. That a search was conducted in the appellant’s apartment but nothing incriminating was found and none of the weapons allegedly used in the robbery or any of the stolen items was found in the appellant’s house. Counsel reiterated that the appellant was not found at the scene of the robbery, none of the stolen items was recovered from him and the offensive weapon used in the commission of the offence was not found on him, even after a search was conducted in his house. That there is neither cogent eye witness evidence nor enough unequivocal substantial evidence that points to the guilt of the appellant. Counsel referred to the cases of ALOR V STATE (1996) 4 NWLR, PT 445, 726 AT 742-743 and ORJI V STATE (2008) 10 NWLR, PT 1094, 31.

Counsel also submitted

that the learned trial judge failed to consider the testimony of PW3 in respect of the person, his neighbour, whom he identified as “Better life” and one of the people who robbed him on the day in question. That neither PW1 nor PW2 mentioned ‘Better life’s arrest or the outcome of police investigation in respect thereof. That the person (Better life) identified by the victim, PW3 and who was arrested in connection with the armed robbery was neither charged to Court along with other accused persons nor called as a witness thus casting doubt in the mind of the Court which doubt ought to have been resolved in favour of the appellant. That the prosecution in no way linked the appellant to the 1st accused person, Adijat Ayefigbo in respect of the robbery or the recovered handset tendered as an exhibit in Court.

Counsel referred to the cases of ALABI V THE STATE (1993) 7 NWLR, PT 307, 511 AT 523 and BOZIN V THE STATE (1985) 2 NWLR, PT 8, 465 AT 469 to identify the three ingredients necessary to prove the offence of robbery:-
1) That there must be a robbery or series of robberies.
2) That the robbery or each of the robbery must

be an armed robbery.
3) That the accused was one of those who took part in the armed robbery.

Counsel contended that even if the prosecution proved the first two ingredients beyond reasonable doubt, it failed to prove the last ingredient which is that the appellant was one of those who took part in the armed robbery or that robbed PW3. That PW3 could not recognise any of the people who robbed him except his neighbour known as ‘Better life’ who was never arrested, charged, tried for the offence or worse still called as a witness.

Counsel contended that while PW2 testified that it was in the course of interrogating the Appellant for the Diamond Bank robbery that he confessed to robbing PW3, in his confessional statement, Exhibit 6, however there was no mention of Diamond Bank robbery. Counsel referred to the case of BOZIN V STATE (SUPRA) to submit that even if only one ingredient of the offence is left unproved, the prosecution cannot be held to have proved its case beyond reasonable doubt.

Counsel also submitted that where a defendant has retracted his confessional statement as in the instant case, it is desirable for the Court to

look outside the confession for other facts or circumstances to test the truth or otherwise of such a confession. Counsel submitted that on the authority of IKPO V THE STATE (1995) NWLR, PT 421, 540 AT 554, the following six parameters are the set test for determining whether or not a confession is true and probable:-
1) Whether there is anything outside the confession that it is true.
2) Whether the statement is corroborated.
3) Whether the statements of facts made in the confessional statement, so far as can be tested is true.
4) Whether the defendant had the opportunity of committing the offence charged.
5) Whether the confession of the defendant was possible and
6) Whether the confession was consistent with other facts which have ascertained and proved at the trial.

Counsel submitted that the learned trial judge did not test the truth and probative value of the appellant’s confession as he failed to corroborate it with any other evidence, direct or circumstantial linking the appellant to the commission of the offence. Counsel argued that the fact that a handset stolen during the robbery was found with the 1st

accused person, Adijat a person known to the appellant is irrelevant and inadmissible evidence against the appellant as there is no evidence before the Court that the appellant gave the said handset to her. That at best this amounts to mere suspicion. Counsel referred to the cases of ABIEKE V THE STATE (1975) NSCC, 404 AT 408; OHUKA V THE STATE (1988) NWLR, PT 86, 35 AT 51; STATE V OGBUBUNJO (2001) NWLR, PT 698, 576 AT 590 and SHEHU V THE STATE (2010) NWLR, PT 1195, 112 among a host of other cases as contained in the written address to contend that mere circumstances of suspicion however strong cannot take the place of legal proof.

Counsel finally submitted on this issue that Exhibit 6, the confessional statement of the appellant lacked probative value and alone was insufficient to prove the offence against the appellant beyond reasonable doubt pursuant to SECTION 135(1) of the Evidence Act, 2011.

On issue (2), counsel submitted that failure of the learned trial judge to accord the appellant the right to an allocutus before passing the sentence of death on him amounts to a denial of his fundamental right guaranteed under SECTION 247 of the CPL and

Section 36(6) of the 1999 Constitution. Counsel argued that this right being constitutionally guaranteed under Section 36(6) of the 1999 Constitution cannot be lightly wished away by the proviso to Section 247 of the CPA which stipulates that failure to ask the convict whether he had anything to say does not invalidate the proceedings. That this proviso must give way to the sacrosanct provision of Section 36(6) of the 1999 Constitution which guarantees the right to fair hearing. That a breach of the right to fair hearing is fatal to the judgment of the Court, vitiates it rendering it a nullity. Counsel urged the Court to resolve both issues in favour of the appellant, allow the appeal and set aside the decision of the lower Court.

The brief of the respondent dated and filed the 14/03/2019 was settled by MR B. V. Falodun, ACLO, Ministry of Justice, Ondo State. In opposing the appeal, MR Falodun adopted the brief as their legal arguments in opposition thereto. In it counsel also distilled two issues for determination, viz:-
a) Whether the prosecution proved the offence of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt

against the appellant.
b) Whether the failure of the trial judge to ask the appellant to plead allocutus is a breach of the appellant’s fundamental right to fair hearing and renders the proceeding a nullity.

On the first issue counsel submitted that on the totality of the evidence adduced by the prosecution the offence of conspiracy has been proved beyond reasonable doubt. Counsel submitted that the confessional statement of the appellant formed part of the case for the prosecution. That by Exhibit A6, the confessional statement of the appellant, he confessed to various robberies at different places including the robbery in the house of PW3 on the 12th of November, 2011. That he also stated in Exhibit A6 that his gang was made up of himself, the 2nd and 3rd defendants, Waidi, Philip and Monday. That the 2nd and 3rd defendants were among the armed gang that robbed PW3 (of different handsets, laptops and money) on the 12th November, 2011.

Counsel further submitted that the prosecution linked the appellant to and established the offence of conspiracy to commit armed robbery against him beyond reasonable doubt. Counsel referred to the case of

OGUDO V THE STATE (2011) 18 NWLR, PT 1278, 1 AT 32 PARAS B-D to state the obviously known ingredients of armed robbery:
1) That there was a robbery or series of robberies
2) That the robbery was an armed robbery and
3) That the accused person participated in the armed robbery.

Counsel submitted that the first two ingredients were established by the evidence of PW1, PW2 and PW3. That this evidence was unchallenged as established by the learned trial judge when he found that the said evidence was unchallenged in cross examination.

On the third ingredient, counsel contended that this was established by the evidence of PW2 who gave evidence that the case of the robbery attack on PW3 was assigned to their team. That PW2 was also a member of the team that was investigating the Diamond Bank robbery that occurred in December, 2011. That the appellant along with the two others tried with him were arrested in connection with the Diamond Bank robbery. That it was in the course of the investigation the appellant confessed to the robbery in PW3’s house. That from Exhibit A6, it was clear that One Waidi participated in the robbery operation.

The evidence also established that the 1st accused at the trial, Adijat in whose possession one of the stolen phones was recovered is a sister to the said Waidi. That Exhibit A6 is consistent with the testimony of PW3 and it linked the appellant to the robbery operation of 12/11/2011 at PW3’s house.

Counsel urged the Court to resolves this issue in favour of the respondent.

On issue two, counsel referred to SECTION 247 of the CPA, CAP C41, LFN, 2004 to submit that it was the duty of the registrar to ask the accused whether he has anything to say before sentence is passed on him. That failure by the registrar or judge to ask the accused shall have no effect on the validity of the proceedings. Counsel contended that the offence of conspiracy to commit armed robbery and armed robbery for which the appellant was tried and convicted carries a mandatory sentence of death. That the trial judge has no discretion to exercise in terms of the sentencing. That having convicted the appellant under the Robbery and Firearms (Special Provisions) Act, the only sentence to pass was death. That since the trial Court has no discretion to mitigate or reduce the

sentence upon convicting the appellant, the constitutional right of fair hearing of the Appellant cannot be said to have been breached and no miscarriage of justice has been occasioned. Counsel urged the Court to resolve the second issue in favour of the respondent, dismiss the appeal and affirm the conviction and sentence of the appellant by the trial Court.

I have critically examined the issues formulated on behalf of the parties and a close and careful look shows that the issues are more or less the same. I will therefore determine this appeal on the issues formulated by the appellant. In doing this, I wish to deal with the second issue first.

It has been argued on behalf of the appellant in the instant case that the failure of the trial Court to call upon him to make an allocutus before the trial Court passed a sentence of death on him amounts to a breach of his fundamental right to fair hearing. The right to fair hearing is governed by SECTION 36 of the 1999 CONSTITUTION. SECTION 36(6) provides:
“36(6) Every person charged with a criminal offence shall be entitled to:
(a) Be informed promptly in the language that he understands

and in detail of the nature of the offence.
(b) Be given adequate time and facilities for the preparation of his defence;
(c) Defend himself in person or by legal practitioners of his own choice.
(d) Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
This provision has stipulated in very clear and unambiguous terms the essential elements of fair hearing in a criminal trial, constitutionally guaranteed. The appellant has not shown which of the provisions of SECTION 36(6) of the 1999 Constitution was breached in the course of his trial. This is expectedly so because none of the provisions deals with allocutus. Allocutus is merely a procedure which affords an appellant or a convict on opportunity to plead for leniency in order

to mitigate the sentence to be imposed where the relevant law gives the trial Court a discretion. The appellant in this case was charged, tried and convicted for conspiracy to commit armed robbery and armed robbery under SECTION 1(2)(a) and 6(b) of the ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP R 11, LFN, 2004. The law provides a mandatory sentence of death for these offences. The trial Court therefore has no discretion to mitigate the sentence.
It is a moot point in the circumstances to argue as learned counsel strenuously did on behalf of the appellant, that failure to call upon the appellant for an allocutus after conviction and before sentence is passed amounts to an infringement of his constitutional right to fair hearing. This is a far cry from the true position of the law. This is that failure of an allocutus is not a breach of the constitutional right to fair hearing and does not invalidate a trial. SALAMI V STATE (2013) LPELR-21112 (CA); AGOSU V THE STATE (2014) LPELR-23107 (CA), AYEFIGBO V STATE (2018) LPELR-45140 (CA) and EDWIN V STATE (2019) LPELR-46896 (SC). It also means that the requirement of an allocutus under our criminal justice

system is not mandatory. This position is strengthened by SECTION 247 of the CRIMINAL PROCEDURE ACT, CAP C41, LFN, 2004 which provides as follows:
“If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to Law, but the omission of the registrar so to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.”
From a sober reflection of the relevant provisions of the law under which the appellant was convicted it is apparent that the sentence of death is mandatory upon conviction. What this means is that the Court has no choice but to impose the statutory sentence. In such circumstances, the Court has no discretion to exercise. This issue was properly put to rest by this Court in the case of PEDRO V THE STATE (2015) LPELR-24547 (CA) where my learned brother Owoade, JCA held thus:
”Furthermore, where as in the instant case, a statute such as the Robbery and Firearms (Special Provisions) Act prescribes a

mandatory sentence in clear terms the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter……………… Clearly, therefore the provision of SECTION 36(6)(b) of the Constitution does not prevent the mandatory sentence of death without any allocutus. In any event, TO ALLOW AN ALLOCUTUS FOR A MANDATORY SENTENCE IS INDEED A CONTRADICTION IN TERMS. THE TRIAL JUDGE HAS NO DISCRETION IN THE IMPOSITION OF MANDATORY SENTENCES AND INDEED HAS NO JURISDICTION IN SUCH CASES TO ENTERTAIN AN ALLOCUTUS.” (Emphasis mine).
The failure of the trial Court to grant an allocutus in the instant case can therefore not be faulted. This issue is therefore resolved against the appellant.

In answering the first and albeit principal issue in this appeal as to whether the prosecution proved its case beyond reasonable doubt against the appellant, I must reiterate the well settled position of the law that the burden of proof that the accused person committed the offence lies squarely on the prosecution. Not only must the prosecution prove the case beyond reasonable doubt but the burden

never shifts: SECTION 135 of the Evidence Act, 2011; IGABELE V STATE (2006) 6 NWLR, PT 975, 100 and OMOREGIE V STATE (2018) AFWLR, PT 925, 1 AT 23. However it must be pointed out that proof beyond reasonable doubt only means that the elements of the offence have to be proved with credible, strong and compelling evidence. It does not in any way mean proof beyond a shadow of doubt. See AGBO V STATE (2006) 6 NWLR, PT 977, 545; UWAGBOE V STATE (2007) 6 NWLR, PT 1031, 606 and AKINLOLU V STATE (2016) 2 NWLR, PT 1497, 503.

Conspiracy as a criminal offence is not defined in the criminal code; thus guidance is drawn from the common law. Under the common law doctrine, conspiracy is an agreement of two or more persons to agree to do an act which is on offence to agree to do or to do a legal act by illegal means. See: NWOSU V STATE (2004) 15 NWLR, PT 897, 466. Conspiracy is often a matter of inference from certain acts or inaction of the parties as direct positive evidence of the plot between the co-conspirators is hardly capable of proof: ODUNEYE V THE STATE (2001) 13 WRN, 88. This is perhaps why in a conspiracy proceeding, evidence of what one accused says in the

absence of the other conspirators is admissible against such others on the basis that if they are all conspirators, what one says in furtherance of the conspiracy would be admissible evidence against the others even though it might have been said in the absence of the other conspirators. This statement of law is an exception to the hearsay rule; NWOSU V STATE (SUPRA). The ingredients of conspiracy are basically three:-
1) An agreement between two or more persons to do or cause to be done an illegal act or some act which is not illegal by illegal means;
2) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and
3) Specifically, that each of the accused persons individually participated in the conspiracy. ABACHA V FRN (2006) 4 NWLR, PT 970, 239 and AITUMA V STATE (2006) 10 NWLR, PT 989, 452.

In proving this head of charge the prosecution relied on the testimony of PW3, the complainant. This evidence which remained unchallenged was to the effect that on the 12th Nov. 2011 his house was invaded by a gang of five armed

robbers who attacked and robbed him of Nokia Handset, Laptops, Android Phones and Money. This evidence was corroborated by the testimonies of PW1, the IPO at ‘A’ Division of the Nigerian Police in Owo, PW2 the IPO at SARS, Akure as well the confessional statements of the 2nd, 3rd and 4th accused persons in Exhibits A4, A5 and A6 respectively. In all the three Exhibits, the three accused persons which include the appellant herein admitted that three of them together with three others, Waidi, Philip and Tayo (all still at large) belong to a gang of armed robbers. That their gang robbed PW3, the complainant in this trial.

I am satisfied from Exhibits A4, A5 and A6 that there was an agreement between the appellant and his co-accused to rob the complainant. I hold that the learned trial judge could therefore not be faulted when he found in respect of the charge of conspiracy at page 112 lines 31-37 thus:
“I am satisfied that the prosecution has established beyond reasonable doubt by the evidence of PW1, PW2, PW3, Exhibits A4, A5 and A6 that the accused persons had a common purpose which is to rob PW3 by violence. The prosecution has

therefore proved conspiracy to commit armed robbery against the 2nd – 4th accused persons.”

The appellant herein was the 4th accused person at the trial Court. I am therefore inclined to uphold the submission of the learned counsel to the respondent that the prosecution has linked the appellant and proved the offence of conspiracy to commit armed robbery against the appellant beyond reasonable doubt. I so hold.

I have gone through the briefs of both parties again very carefully. What is apparent is that there is no contest between the parties as to the three elements of the offence of armed robbery. The appellant also does not contest the fact that there was a robbery and it was an armed robbery in the house of PW3, one DR. Ademola Obanoyen on the 12th of November, 2011. The two pronged complaint of the appellant from the brief as I understand it is on the identity of the appellant as one of those who robbed the house of PW3 and whether the evidence of the prosecution did not create a doubt in the mind of the Court which doubt should have been resolved in favour of the appellant. There are a few ancillary issues which will be dealt with

as we go along in this judgment.

accused person have the opportunity of committing the offence charged?
5) Is the confession possible?
6) Is the confession consistent with other facts which have been ascertained and have been proved?
See also the more recent apex Court cases of: OSENI V STATE (2012) 5 NWLR PT 1293, 351; ADESINA V STATE (2012) 14 NWLR, PT 1321, 429; UMAR V STATE (2018) 7 NWLR, PT 1617, 72 and TOBI V STATE (2019) LPELR-46537(SC).
The learned counsel to the appellant contended that the prosecution did not prove that the appellant had the opportunity to commit the offence and that the complainant did not identify the appellant as one of those who robbed him.
The learned trial judge having found that she could convict the appellant on Exhibit A6, his retracted confessional statement went ahead to analyse the six principles guiding the Court, expressed the necessity to have some evidence outside the confession be it slight of circumstances which make it probable that the confession is true. The trial judge found this slight evidence in the acknowledgment of the appellant and his co-accused, Akinlo Ifedayo (3rd Accused) who stated in Exhibit A5 that the

items stolen from PW3 included phones and laptops. That Waidi, their co-conspirator and participant in the robbery left with phones and laptops. It is not a coincidence that the 1st accused whom the appellant admits to knowing as a sister of the said Waidi had one of the stolen phones recovered from her. Also the appellant’s explanation as to how they gained entrance into PW3’s house to rob him tallied with the testimony of PW3 that the robbers broke the wall to gain access into the house.
I agree with the learned trial judge that these pieces of evidence provide more than slight circumstances that made it probable that the confession was true within the meaning of the law. Furthermore, as I found earlier in this judgment and on the authority of NWOSU V STATE (SUPRA), Exhibits A4 and A5, the confessional statements of the 2nd and 3rd accused that the appellant, the 4th accused in the trial was among their gang who robbed PW3 on the 12th day of November, 2011 is admissible evidence against the appellant, a co-conspirator. These exhibits clearly fixed the appellant at the scene of crime and as an active participant in the robbery. The appellant

cannot therefore be heard to argue otherwise.

This also resolves the issue of the identity of the appellant as one of the robbers in question. The trite position of the law is that when an accused by his confessional statement places himself at the scene of crime as one of the participants in the commission of the offence, the issue of identification becomes of no moment. It is a well established principle of criminal law that confession is the strongest evidence of guilt as what is admitted needs no further proof. Evidence of confession is a stronger evidence than eye witness evidence for as my learned brother, Elechi, JCA aptly frames it in DAVID V THE STATE (2019) LPELR – 47487(CA): “it comes from the horses mount”. The learned trial Court in the instant case found that Exhibit A6 was true and convicted the appellant based on it. The identity of the appellant as one of the robbers was therefore not in doubt. This is especially so as the learned trial judge complied with the six way test and relied on some evidence outside the confession that made it probable that the confession was true. The contention of the appellant in this case was

principally that the complainant, PW3 never identified him. This is similar to the situation in ALAO V THE STATE (2019) LPELR-47856 (SC) where the appellant complained that he was never mentioned as one of those who took part in the commission of the crime. In dismissing the appeal, Bage, JSC held thus:
“…………. Moreso, the confessional statement shows clearly that he jointly participated in committing the offence that led to the death of the deceased person. The Appellant mentioned the name of other co-accused persons (Fatai Busari, Osuolale Mumuni Adisa and Sunday Okafor and himself) as members of the gang who came from Lagos to Ibadan and carried out the robbery that led to the death of the decease. HOW BEST TO IDENTIFY A SELF-CONFESSING ACCUSED PERSON OTHER THAN BY HIS SELF IDENTIFICATION?” (Emphasis mine)
See also LAWALI V THE STATE (2019) LPELR-46405 (SC); OLAOYE V THE STATE (2018) 8 NWLR, PT 1621, 281 and AFOLABI V STATE (2013) 13 NWLR, PT 1371, 292.
Based on these authorities I hold that the appellant having by Exhibit A6 identified himself with the commission of the act constituting the offence he was charged with, the

question of his identity ceases to be a relevant fact in the consideration of this appeal.

The appellant’s counsel made heavy weather as to how the appellant was arrested and the fact that he was arrested in connection with Diamond Bank robbery. In my view how the appellant was arrested has no bearing on this case. Also of no moment is the fact that he was arrested in connection with Diamond Bank robbery and not the robbery in the house of the complaint. Diamond Bank robbery is not a live issue in this appeal. Any submission in that regard is a mere distraction aimed at diluting the instant case. The Investigating Police Officer (IPO) who investigated this case, both at the divisional level and at SARS testified in this matter. PW2 was the IPO at SARS. He was never cross examined in respect of Diamond Bank robbery. So the evidence remains unchallenged and what he has stated. That he arrested the appellant in connection with the Diamond Bank robbery. That it was in the course of investigation that the appellant and his co-accused in confessing to the robberies they had participated in mentioned that of PW3. This is consistent with Exhibit A6 where

the appellant stated that their gang had participated in many robberies. It is also consistent with the testimony of PW3 that when he was recalled from his trip to the UK in respect of the robbery investigation and he went to SARS, the appellant and his co-accused to his surprise immediately identified him as the person they had robbed. Again PW3 was never cross examined on this piece of evidence. Neither was he cross examined as to who and where ‘Better Life’, his neighbour that he alleged was arrested in connection with the robbery in his house having identified him as one of those who robbed him was. No question about ‘Better Life’ was put to PW1 and PW2 who both investigated this case. It is therefore not open to counsel to start raising such issues on appeal. The trial Court was correct to have acted on the evidence of the prosecution especially Exhibit A6. This was direct, positive and compelling and properly supports the conviction. The submission of appellant’s counsel on this issue is hereby resolved in favour of the respondent.

In conclusion, and having resolved both issues formulated for determination in this

appeal against the appellant, it follows that this appeal is devoid of merit. It fails and I accordingly dismiss it. The judgment of the Ondo State High Court in Suit No AK/90C/2012 delivered on the 20th March, 2013 which convicted and sentenced the appellant for conspiracy to commit armed robbery and armed robbery is accordingly affirmed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA.
I agree with the line of reasoning of and the conclusion reached by His Lordship that the appeal is devoid of merits. I equally dismiss the appeal and abide by the consequential orders made, in the said leading judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA.

The treatment of the two issues formulated by the Appellant in the lead judgment is purposeful and the resolution of same in accordance with the justice of the Criminal Appeal. I therefore subscribe to the reasoning and conclusion reached in the lead

judgment.
This Appeal has no merit and fails. It is dismiss by me and the conviction and sentence of the Appellant by the Lower Court affirmed.

Appearances:

MR O. I. Tiwo, with him, MR A. D. Umondiegbo holding the brief of MRS Adedoyin Rhodes-Vivour, SAN For Appellant(s)

MR B. V. Falodun, ACLO, Ondo State MOJ, with him, MR Folabi Awodeyi, SLO For Respondent(s)