ADEBISI v. STATE (2020)

ADEBISI v. STATE

(2020)LCN/14703(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, October 07, 2020

CA/AK/63C/2015

RATIO

EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE

The law is trite that the Court is bound to act on uncontroverted and unchallenged evidence: OMOREGBE V LAWANI (1980) 3-4 SC, 108; ZUBAIRU V STATE (2015) 16 NWLR, PT 1486, 504 and MTN V CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC). PER MAHMOUD, J.C.A.

IDENTIFICATION PARADE: EFFECT OF WHERE A PERSON IDENTIFIES HIMSELF AT THE SCENE OF CRIME ON IDENTIFICATION PARADE

Again the law is trite that where a person by his confession identifies himself or puts himself at the scene of crime, identification parade or other form of identification becomes irrelevant. In the case of IFEDAYO V THE STATE (2018) LPELR-44374 (SC), the Apex Court reiterated this point when it held per Augie, JSC as follows:
“……….. In this case, as I noted earlier, Exhibit A5 is the pivotal piece of evidence, upon which the prosecution founded its case, and upon which the two lower courts based their findings……. The confessional statement of Exhibit A5 is an admission by the appellant that he was one of the persons, who robbed PW3………. The appellant IDENTIFIED HIMSELF IN HIS CONFESSIONAL STATEMENT EXHIBIT A5, therefore, THERE IS NO NEED FOR FURTHER IDENTIFICATION PARADE AS THE APPELLANT BY HIMSELF IDENTIFIED HIMSELF THEREBY REMOVING ANY DOUBT OF HIS INVOLVEMENT IN THE COMMISSION OF THE OFFENCE.” (Emphasis provided). PER MAHMOUD, J.C.A.
CRIMINAL LAW: PRINCIPLES GOVERNING IDENTIFICATION EVIDENCE OR PARADE

the law is well established that identification evidence or parade is not a sina qua non for identification in all cases, where there is other evidence which conclusively leads to the identity of the offender. The Apex Court in the case of IKEMSON V STATE (1989) 3 NWLR, PT 110, 455 set out the circumstances under which an identification parade becomes essential as:
1) Where the victim did not know the accused before;
2) Where the victim was confronted by the offender for a very short time and
3) Where the victim, due to time and circumstance might not have had opportunity of observing features of the accused.
Oputa, JSC succinctly opined in his judgment in IKEMSON V STATE (SUPRA) that where a witness’ first acquaintance with the accused is during the commission of the offence, an identification parade may be held. His Lordship however observed that such a parade is not full proof and is not a guarantee against the usual errors of recognition or reconstruction. The preferred practice would be for learned counsel to the accused person to by purposeful cross examination expose any errors of observation, recognition, resemblance, etc thus weakening the prosecution’s case rather than an insistence on identification parade. The important consideration always is that the Trial Court is satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who committed the offence charged. PER MAHMOUD, J.C.A.

ALIBI: POSITION OF THE LAW ON ALIBI

On alibi, the settled position of the law is that alibi is only properly raised, when done at the earliest opportunity when the accused person is confronted by the police with the commission of an offence to give the Police an opportunity to investigate the said alibi. In the case of JOSEPH V THE STATE (2017) LPELR-43614 (CA), this Court held that where the defence of alibi is raised belatedly during trial and not at the earliest opportunity, the defence becomes of no moment to the accused person and becomes an exercise in futility. PER MAHMOUD, J.C.A.

CONFESSION: WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT

It has been settled in a long line of authorities that in appropriate cases, an accused person may properly be convicted on his confessional statement. The only proviso is that the confession is positive, direct and unequivocal: OKERE V THE STATE (2016) 7 NWLR PT 1512, 417; JOHN V STATE (2019) LPELR-46936 (SC); IGRI V STATE (2012) 16 NWLR, PT 1327, 522 AT 542 and KOLADE V STATE (2017) 8 NWLR, PT 1566, 60. There is no doubt from these listed authorities and others too numerous to list in this judgment, that a voluntary confession of guilt by an accused person if fully consistent and probable and if there is a clear proof that a crime has been committed by some person(s), is accepted as satisfactory/sufficient evidence on which a Court can convict. PER 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

SUNDAY ADEBISI APPELANT(S)

And

THE STATE RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant was originally arraigned with two others on a one count charge of robbery contrary to and punishable under SECTIONS 401 and 402 respectively of the Criminal Code of Ondo State on the 28/09/2010. When the trial was to commence on the 11/12/2012, the Court was informed that the then 1st defendant one Salisu Imoru who was on bail had jumped bail. On the 30/06/2013 there was a jail break at the Akure prison. The second defendant on the charge sheet was among the jail breakers. The prosecution had to withdraw the information/charge against him. On the 11/12/2012, the appellant, the only remaining defendant took his plea on the amended charge after the names of the other two persons were struck out. The appellant pleaded not guilty.

In proof of its case the prosecution called three witnesses and tendered one exhibit, Exhibit A. The case of the prosecution was that on or about the 24th April, 2009; the appellant together with others still at large robbed one Olajide Amos of his single barrel gun No. CBC 014200. The prosecution also relied on Exhibit A, the confessional statement of

the appellant in which he admitted that their gang leader Ogbona Okorie challenged the security man (the victim) to drop his gun and another gang member, Salisu Imoru went away with the gun.

The appellant testified in his own defence and called no other witness. His defence was a complete denial of the charge. Instead, the appellant maintained that he was in his furniture workshop at Odosida Ondo, returned home that night and slept with his family.

At the close of evidence and adoption of final written addresses by both counsel, the learned Trial Judge, Hon. Justice D. I. Kolawole in a judgment delivered on the 31st March, 2014 convicted and sentenced the appellant to 12 years imprisonment with hard labour for robbery pursuant to Section 402 of the Criminal Code of Ondo State, Cap 37, Laws of Ondo State, 2006.

The appellant being dissatisfied with this conviction and sentence appealed to this Court vide a Notice of Appeal filed on the 16th December, 2014 on five grounds with their particulars as follows:
GROUND 1
The learned trial judge erred in law in convicting the appellant of Robbery when there was a serious

doubt as to the identity of the appellant.
Particulars
1. PW1 was the so called eye witness in this case.
2. The incidence occurred late at night and yet he claimed he saw the accused.
3. The trial Judge said he believed this.
4. This was a great error as PW2 could not have properly identified the appellant with such situation.
GROUND 2
The learned trial judge erred in law in holding that there was proper identification of the appellant.
PARTICULARS
1. The robbery took place at night.
2. The PW2 was told to face down and it was dark.
3. There was no way PW2 could have identified the appellant.
GROUND 3.
The learned trial judge erred in law in holding that the ingredients of robbery had been proven before he went ahead to convict the appellant.
Particulars:
1. One of the essential ingredients of robbery is use of violence or threat of violence.
2. This ingredient was clearly missing in this case but the Learned Trial Judge held otherwise.
GROUND 4
The

learned trial judge erred in law in placing any weight on the confessional statement exhibit “A” when this was clearly retracted by the appellant.
Particulars:
1. The Appellant was alleged to have made a confessional statement which was tendered as Exhibit A.
2. This said statement was retracted by the appellant and yet the Learned Trial Judge placed much reliance on it.
3. Circumstances for believing the said statement after it was retracted were absent.
GROUND 5.
The learned trial judge erred in law in convicting the appellant of Robbery when there was no proof beyond reasonable doubt as required by law.
Particulars:
A. The appellant was charged with the offence of robbery.
B. The requirements of the law as that there must be proof beyond reasonable doubt before a conviction.
C. No such proof was present in this case.

This Notice of Appeal, the record as well as the appellant’s brief were filed, transmitted and filed out of time respectively. By a motion filed on the 30th August, 2017 but moved and granted on the 6th February, 2019, the appellant had all his three processes; the Notice

of Appeal, the record and the brief deemed as properly filed, transmitted and filed respectively.

The appellant’s brief of argument filed on the 15th June, 2017 was settled by Oladipo Olasope. The brief was deemed properly filed and served on the 6th February, 2019. In arguing the appeal, MS R.O. Igbabo of counsel for the appellant adopted the brief as their oral arguments in support of the appeal. In it counsel raised the following three issues for determination by the court:
(a) Whether the prosecution has successfully proved the offence of robbery beyond reasonable doubt.
(b) Whether the trial judge was right in finding the appellant guilty when there is serious doubt as to the identity of the appellant.
(c) Whether the trial judge was right in placing so much reliance on Exhibit A which the appellant retracted.

In arguing issues 1 and 3 together, counsel submitted that to sustain a conviction for the offence of robbery the prosecution must prove the following four ingredients:-
(a) That the accused stole something.
(b) That the thing stolen is capable of being stolen.
(c) That the accused threatened to use or

actually used violence immediately before or immediately after the time of stealing the thing and
(d) The violence could be on either a person or a property in order to obtain or retain the stolen (sic) or to prevent resistance to it being stolen or retained.

Counsel referred to the cases of TAOFEEK ADELEKE & ANOR V THE STATE (2012) AFWLR, PT 606, 572 AT 582 and RASHEED LASISI V THE STATE (2011) AFWLR, PT 601, 1410 AT 1432.

Counsel contended that the trial Court relied heavily on the evidence of PW1, PW2, PW3 and the confessional statement which was retracted by the appellant. Counsel argued that PW1’s testimony is hearsay and unreliable. That the assertions by PW2 that: “It would have been too dangerous to resist them,” and “I was not injured” showed that there was no violence or threat of violence during the alleged attack. Counsel also contended that it was doubtful if PW2 properly identified the appellant as the culprit. He submitted that the testimony of PW2 is not believable as to the identity of the appellant. That PW2 testified that: “I know Sunday Adebisi very well among those that attacked

me.” “I looked at him while I was made to prostrate on the aground.” Counsel wondered how a victim who is asked to lie down can identify his attackers, except someone he has known before the incident. That PW2’s evidence under cross examination means that he did not know the appellant before the robbery attack. Counsel also contended that the appellant consistently retracted Exhibit A, the purported confessional statement and has therefore impeached the statement. Counsel referred to the case of ALIYU V STATE (2016) AFWLR, PT 852, 1515 to submit that where a confessional statement has been impeached, the Court must look outside the said confession to find out if evidence exists to sustain the charge. Counsel referred to the case of TAOFEEK ADELEKE & ANOR V THE STATE (SUPRA) to submit that in considering the weight to be attached to Exhibit A the confessional statement, such statement must pass the six way test:
(a) Whether there is anything outside the confessional statement to show that it is true.
(b) Whether it is corroborated
(c) Whether the relevant statement made in it are facts so far as they can be

tested.
(d) Whether the accused person was one who had the opportunity of committing the crime.
(e) Whether the confession is possible
(f) Whether the confession is consistent with other facts which have been ascertained and have been proved.

Counsel argued that Exhibit A is written in good English and could not possibly have been written by the appellant who stated in his evidence that he did not go beyond primary school in his education. That it is clear that Exhibit A was not authored by the appellant but rather by PW3 to nail the appellant. That if Exhibit A was written by someone else who claimed to have read it over to the accused person and the accused adopted same, failure to call the interpreter who interpreted the statement is fatal. Counsel referred to the case of NWAEZE V STATE (1996) 2 SCNJ, 42 AT 54 to contend that failure to call the interpreter renders the statement, Exhibit A unreliable as a confessional statement. Counsel submitted that there were material contradictions in the evidence of the prosecution. That on the authority of EBONG V STATE (2012) ALL FWLR, 1945 AT 1972, once there is a material contradiction in

the evidence of the prosecution, any conviction based on such evidence must be set aside.

On issue (2), counsel submitted that none of the prosecution witnesses claimed to have known the appellant prior to his arrest. That in such circumstances, an identification parade was necessary. Counsel referred to the cases of SEGUN BALOGUN V AG OF OGUN STATE (2002) FWLR, PT 100, 1287 AT 1301, PARAS D-F and ADAMU V STATE (2016) AFWLR, PT 826, 517 AT 539. Counsel contended that PW2 testified that he was asked to lie down. That it is difficult to clearly identify someone in that state. That the identity of the persons that attacked PW2 is in doubt. Counsel urged the Court to resolve this doubt in favour of the appellant.

The respondent’s brief settled by MRS G. A. Olowoporoku, the learned DPP, Ondo State Ministry of Justice was filed on the 27th February, 2019. The learned DPP adopted same as their legal arguments in opposition to the appeal. In it, counsel also formulated three issues for determination as follows:-
1) Whether the learned trial judge was right in holding that the prosecution G. 3, 5 (sic) proved its case beyond reasonable doubts as

required by law.
2) Whether the procedure adopted for identifying the Appellant is valid in G. 1, 2 (sic) Law.
3) Whether the Trial Court was right to attach any or much weight to Exhibit G. 4 (sic) A (Appellant’s Confessional Statement) in the light of the evidence before the Court.

On issue (1), the learned DPP submitted that to sustain the charge of robbery, the prosecution is required to prove the following four elements:
(a) That the defendant stole something.
(b) That the thing stolen is in law capable of being stolen.
(c) That the defendant threatened the use of violence or actually used violence immediately after the time of stealing the thing.
(d) The violence could be on either a person or on a property in order to obtain or retain the thing stolen or prevent or overcome resistance to its being stolen or retained.
Counsel referred to the case of HENRY OTTI V THE STATE (1991) 8 NWLR, PT 207, 103 AT 118, PARAS C-D.

On the first ingredient counsel referred to the holding of the Trial Court on the evidence of PW2 that he was attacked by some people who succeeded in taking away the gun he had

in his possession. The learned DPP also referred to Exhibit A, the confessional statement of the appellant which confirmed the evidence of PW2 that he was attacked and his gun robbed as showing that the prosecution proved that PW2’s gun was stolen and thereby established the first ingredient.

On the second ingredient, the learned DPP referred to the holding of the Trial Court at page 58 lines 14-15 of the Record to contend that the gun is capable of being stolen.

On the third and fourth ingredients, counsel referred to Exhibit A, the testimony of PW2 and the holding of the Trial Court at page 58 lines 26-31 and page 59 lines 1-4 to submit that these two ingredients were proved by the prosecution beyond reasonable doubt. The learned DPP urged the Court to resolve these issues in favour of the respondent.

On issue (2), the learned DPP relied on the case of IBRAHIM V THE STATE (2003) ACLR, 474 AT 486 to submit that it is not in all cases that identification parade is necessary. Counsel also referred to the testimony of PW2 both in chief and under cross examination, as well as the holding of the Trial Court to show that the appellant was

properly identified as having committed the offence. Counsel referred to the case of IKEMSON V STATE (1989) 3 NWLR, PT 110, 455, PARAS B-C to submit that the appellant by Exhibit A identified himself as one of the robbers who robbed PW2 of his single barrel gun on the 24/04/2009. That having so identified himself, the appellant removed any doubt of his involvement in the commission of the offence. That the evidence of PW2, the victim and Exhibit A, the confessional statement of the appellant provided cogent and compelling evidence that the appellant was one of the robbers who robbed PW2 of his single barrel gun.

On the defence of alibi raised by the appellant, the learned DPP submitted that the defence was raised for the first time in the trial of the appellant. That the Trial Court rightly found, relying on the case of SAMSON EBENEHI & ANOR V THE STATE (2009) 6 NWLR, PT 1138, 431 AT 444, PARAS A-B that the defence of alibi in the circumstances was not properly raised by the appellant to require any consideration. That the Trial Court was right to prefer the evidence of PW2 that fixed the appellant to the locus criminis as far more superior to the

Ipixi dixi of the appellant. Counsel urged the court to resolve this issue in favour of the respondent.

On the last issue, the learned DPP submitted that the Trial Court was right to have attached much weight to Exhibit A to convict the appellant. Counsel referred to the case of EGBOGHONOME V STATE (1993) 7 NWLR, PT 306, 383 and SECTION 27(1) & (2) of the Evidence Act, 2011 to submit that it is settled law that once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution and a judge is therefore bound to consider its probative value. Counsel also submitted that once a statement is in compliance with the law and the rules governing the method for taking it and it is tendered and admitted as an exhibit, then it is good evidence and no amount of retraction will vitiate its admission as a voluntary statement. Counsel referred to the case of IKEMSON V STATE (SUPRA). The learned DPP referred to the case of ALARAPE V THE STATE (2001) 5 NWLR, PT 705, 79 to submit that the test for determining the veracity of a confessional statement is to seek any other evidence be it slight of circumstances which make it probable that

the confession is true. Counsel contended that in the instant case, the testimonies of PW1 and PW2 constitute evidence outside the confession which links the appellant to the commission of the crime. Counsel finally submitted that the fact that a confessional statement is retracted does not preclude the Court from acting on it.

The learned DPP urged the Court to also resolve issue 3 in favour of the respondent, dismiss the appeal for lacking in merit and uphold the conviction of the appellant by the Trial Court.

The issues raised by the two parties are more or less the same. I could therefore not help wondering why the respondent did not simply adopt the three issues raised by the appellant instead of raising the same issues as if they are different in context. This may not be unconnected with the new unexplainable fad which makes respondents feel that to be in real opposition to the appeal they have to distil their own issues distinct from those formulated by the appellant. This is a big misconception which is often detrimental to the respondent. By the time the respondent formulates his issues distinct from the appellant’s, they lose focus on

the issues formulated by the appellant. They are therefore unable to respond to them adequately and effectively, even though this should be their primary focus, to respond effectively to the issues raised in the appeal. This appeal will however be determined on the three issues raised by the appellant. Even though the appellant argued issues (1) and (3) together, I will treat them separately in this judgment. This is because strictly speaking issue (1) is all encompassing but it is important to deal with the issue of retraction of confessional statement raised in issue (3) by the appellant.

The first issue deals with whether the prosecution proved robbery beyond reasonable doubt to warrant or justify the conviction of the appellant. Both parties have rightly stated the four ingredients of the offence of robbery. For the avoidance of doubt I repeat them and in the process find whether the prosecution proved each ingredient beyond reasonable doubt as required by law:
1) The first ingredient is that the accused stole something.
In finding that this ingredient was proved by the prosecution, the Trial Court found and believed the testimony of

PW2 where he stated that he was attacked by some people who took away the gun in his possession. The Court found that PW2 was never cross examined on this issue. The law is trite that the Court is bound to act on uncontroverted and unchallenged evidence: OMOREGBE V LAWANI (1980) 3-4 SC, 108; ZUBAIRU V STATE (2015) 16 NWLR, PT 1486, 504 and MTN V CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC). To establish that the appellant was one of the persons who attacked the victim PW2, the Trial Court relied on Exhibit A the confessional statement. Again the law is trite that where a person by his confession identifies himself or puts himself at the scene of crime, identification parade or other form of identification becomes irrelevant. In the case of IFEDAYO V THE STATE (2018) LPELR-44374 (SC), the Apex Court reiterated this point when it held per Augie, JSC as follows:
“……….. In this case, as I noted earlier, Exhibit A5 is the pivotal piece of evidence, upon which the prosecution founded its case, and upon which the two lower courts based their findings……. The confessional statement of Exhibit A5 is an admission by the

appellant that he was one of the persons, who robbed PW3………. The appellant IDENTIFIED HIMSELF IN HIS CONFESSIONAL STATEMENT EXHIBIT A5, therefore, THERE IS NO NEED FOR FURTHER IDENTIFICATION PARADE AS THE APPELLANT BY HIMSELF IDENTIFIED HIMSELF THEREBY REMOVING ANY DOUBT OF HIS INVOLVEMENT IN THE COMMISSION OF THE OFFENCE.” (Emphasis provided).
In the same vein I hold that in the instant case the appellant having by Exhibit A, the confessional statement identified himself and put himself at the scene of crime thereby removing any doubt as to his involvement in the commission of the offence. I find therefore that the learned Trial Judge rightly found that the evidence of the prosecution coupled with the appellant’s confessional statement, Exhibit A constitute convincing, cogent and compelling evidence which not only made identification or identification parade irrelevant but upon which he properly relied to convict the appellant.
On the second ingredient, it is in contestable and as the learned Trial Judge in my view rightly found:
“There is no issue as to whether the gun stolen was capable of being stolen. It is capable

of being stolen.”
The third and fourth ingredients have to do with threat or use of actual violence immediately after the time of stealing the thing in question. Exhibit A is quite instructive on this. In it the appellant stated quite categorically thus:
“On our way going we now met two men who claimed to be security men/vigilante men with gun, immediately our leader one Ogbona Okorie started challenging them and told them to drop their gun in which one of the security man quickly dropped his singled (sic) barrel gun. Ogbona later commanded Umoru Salisu to go and carry the single barrel gun in which he did. Our aim is to kill the security man on that night if they wanted to disturb us”
This evidence was corroborated by the testimony of PW2 who testified that six men, one of whom had a pump action gun struggled with him to have the gun. And that it would have been dangerous to resist them. One is not left in any doubt from this testimony that the appellant and group threatened violence on PW2 when they accosted him that night of 24th April, 2009 to steal a single barrel gun from him. The learned Trial Judge was therefore

justified in so finding. In the circumstances and having found all the ingredients established, I resolve this issue in favour of the respondent and against the appellant.

On issue 2, the law is well established that identification evidence or parade is not a sina qua non for identification in all cases, where there is other evidence which conclusively leads to the identity of the offender. The Apex Court in the case of IKEMSON V STATE (1989) 3 NWLR, PT 110, 455 set out the circumstances under which an identification parade becomes essential as:
1) Where the victim did not know the accused before;
2) Where the victim was confronted by the offender for a very short time and
3) Where the victim, due to time and circumstance might not have had opportunity of observing features of the accused.
Oputa, JSC succinctly opined in his judgment in IKEMSON V STATE (SUPRA) that where a witness’ first acquaintance with the accused is during the commission of the offence, an identification parade may be held. His Lordship however observed that such a parade is not full proof and is not a guarantee against the usual errors of recognition or

reconstruction. The preferred practice would be for learned counsel to the accused person to by purposeful cross examination expose any errors of observation, recognition, resemblance, etc thus weakening the prosecution’s case rather than an insistence on identification parade. The important consideration always is that the Trial Court is satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who committed the offence charged.

In the instant case, PW2 the victim, gave evidence before the court as follows:

“There was a full moon that night that I was attacked I know Sunday Adebisi very well among those that attacked me. I looked at him while I was made to prostrate on the ground ……… Sunday Adebisi was not masked. I complained to the Police. The third day I was invited to the Police Station. I identified Sunday Adebisi as one of the six that attacked me to rob me of my gun. I ASKED SUNDAY ADEBISI WHAT I DID TO WARRANT WHAT THEY DID TO ME. HE TOLD ME THAT THEY MERELY TOOK A CHANCE AT ME.” (Emphasis provided).
Under cross examination PW2 stated that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Sunday Adebisi was not masked that day, he was close to me. I recognize (sic) him immediately I saw him at the Police Station.”
PW2 was never cross examined on the emphasised words especially “He told me that they merely took a chance at me.” The law is trite that the Court is bound to act on an uncontradicted and unchallenged evidence of a witness where as in this case such evidence is not incredible: IDRIS V STATE (2015) LPELR-25965; FAGGE V AMADU (2015) LPELR-25920, IGHALO V THE STATE (2016) LPELR-40840 (SC) and YUSUF & ANOR V STATE (2019) LPELR-46945 (SC). The answer allegedly given by the appellant as stated by PW2 in cross examination is akin to an admission, that the appellant was indeed part of the group that attacked PW2. Having failed to challenge the said evidence in cross examination, the appellant is deemed to have admitted same. The learned Trial Judge was therefore right in acting on the said evidence to convict the appellant. I am not persuaded by any argument by the appellant to warrant my disturbing the finding of the trial judge on this point.

On alibi, the settled position of the law is that

alibi is only properly raised, when done at the earliest opportunity when the accused person is confronted by the police with the commission of an offence to give the Police an opportunity to investigate the said alibi. In the case of JOSEPH V THE STATE (2017) LPELR-43614 (CA), this Court held that where the defence of alibi is raised belatedly during trial and not at the earliest opportunity, the defence becomes of no moment to the accused person and becomes an exercise in futility. In this case, it was at the point of his defence in Court that the appellant raised the defence of alibi. I find that the learned Trial Judge properly disregarded the defence of alibi in the circumstances. His lordship was on sound footing by finding that the defence of alibi raised for the first time in his testimony during his defence cannot avail the appellant. He rightly held that he preferred the evidence of PW2 which was cogent and compelling and fixed the appellant at the locus criminis to the ipix dixit of the appellant. This is in tandem with the settled position of the law and I endorse it. Consequently, this issue is also resolved in favour of the respondent against the

appellant.

The last issue raised is whether the Trial Judge was right in placing so much reliance on Exhibit A which the appellant retracted. Exhibit A is the confessional statement of the appellant upon which the prosecution relied albeit somewhat heavily in proof of its case. It has been settled in a long line of authorities that in appropriate cases, an accused person may properly be convicted on his confessional statement. The only proviso is that the confession is positive, direct and unequivocal: OKERE V THE STATE (2016) 7 NWLR PT 1512, 417; JOHN V STATE (2019) LPELR-46936 (SC); IGRI V STATE (2012) 16 NWLR, PT 1327, 522 AT 542 and KOLADE V STATE (2017) 8 NWLR, PT 1566, 60. There is no doubt from these listed authorities and others too numerous to list in this judgment, that a voluntary confession of guilt by an accused person if fully consistent and probable and if there is a clear proof that a crime has been committed by some person(s), is accepted as satisfactory/sufficient evidence on which a Court can convict.

There is however the nagging issue of whether the Court would consider a voluntary statement made by an accused person but later

retracted. This matter was put to rest by the Apex Court in EGBOGHONOME V THE STATE (1993) 7 NWLR, PT 306, 363 where the Court in overruling its earlier decision in OLADEJO V THE STATE (1987) 3 NWLR, PT 61,419 held that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and having become part of the case for the prosecution, the trial judge is bound to consider its probative value when considering the retraction made subsequently. This decision has since become the settled legal position. That despite the fact that the appellant at the trial retracts his confessional statement, the Trial Court will be right to act upon it in convicting the appellant. See NWANGBOMU V THE STATE (1994) 2 NWLR, PT 327, 380; IDOWU V STATE (2000) 12 NWLR, PT 680, 48; DARLINTON V FRN (2018) LPELR-43850 (SC), AWOSIKA V THE STATE (2018) LPELR-44351 (SC) and DAVOU V COP, PLATEAU STATE COMMAND (2019) LPELR-47040 (CA).
In the instant case therefore, it is of no moment that the appellant retracted his confessional statement in Exhibit A. The learned Trial Judge was right to have acted on it in the face of the evidence of PW2 in

convicting the appellant.

The appellant’s counsel raised two ancillary issues which should perhaps not be glossed over. These are in respect of the failure of the Trial Court to consider the defence(s) raised by the appellant. From the records, the only defence raised by the appellant at the trial was the defence of alibi. The learned Trial Judge adequately considered this defence and I have properly found that it did not avail the appellant. I have also considered this defence and found that because it was raised only during the trial and not timeously, it was rendered irrelevant and useless to the appellant as a defence. Indeed the learned Trial Judge rightly described it as a mere ipix dixi in comparison to the cogent evidence of the prosecution’s main witness, PW2.

The second ancillary issue is an alleged contradiction in the evidence of the prosecution. These alleged material contradictions according to the appellant’s counsel are that while PW2 stated that he was in the company of another security man, PW3, the IPO never testified that the case he investigated had two victims. The simple answer to this alleged contradiction is

that PW2 was the only victim. This was clearly explained in Exhibit A by the appellant thus:
“…………… On our way going we met two men claimed to be security men/vigilante men with gun, immediately our leader one Ogbona Okorie started challenging them and told them to dropped (sic) their gun in which ONE OF THE SECURITY MAN QUICKLY DROPPED HIS SINGLED (SIC) barrel gun, WHILE THE SECOND SECURITY MAN ESCAPED WITH HIS OWN SINGLE BARREL …………”
This clearly explains the fact that PW2 was in the company of a second security man at the time he was accosted but since that second man ran away he could not be said to have been a victim. There is therefore no contradiction as PW3 only investigated the complaint of one victim and not two. The second security man was clearly not a victim to the robbery by the appellant and his group.
The learned counsel also referred to the fact that Exhibit A referred to the gun as single barrel and PW2 referred to it as a double barrel gun as a material contradiction. The indisputable position of the law on this is that mere discrepancies are distinguishable from material contradictions.

Contradictions are fatal only if they go to the substance of the case: SULEIMANA V LAGA (2005) ALL FWLR, PT 248, 1762 AT 1759 and FRIDAY V STATE (2016) LPELR-40638 (SC). As this Court aptly reasoned in the cases of EKEZIE V STATE (2016) LPELR-40961 (CA), BABARINDE V STATE (2012) LPELR-8357 (CA) and BRILA ENERGY LTD V FRN (2018) LPELR-43926 (CA) if every contradiction, however trivial to the overwhelming evidence before the Court will vitiate a trial, then almost all prosecution cases will fail! This is because two persons who witnessed an incident cannot give an identical account of it except of course they have been tutored!! In the instant case whether the gun is double barrel, single barrel or triple action, it is still a gun. The evidence of PW2 does not therefore violently contradict Exhibit A in terms of the description of the gun as it is not inconsistent with Exhibit A. I hold that the alleged contradictions which are mere discrepancies are not material enough to ascribe the effect sought by learned counsel. The discrepancy has no bearing on the substance of the issue. This submission/contention of counsel is therefore discountenanced. Consequently, issue

3 is also resolved in favour of the respondent against the appellant.

Having resolved all the issues raised by the appellant against him, it follows that this appeal lacks merit. It is therefore accordingly dismissed. The judgment of the Trial Court convicting the appellant for robbery and delivered on the 31st of March, 2014 is hereby 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 am at one with His Lordship’s line of reasoning and conclusion that the appeal is bereft 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.: Having read the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA. I am in agreement with the reasoning and conclusion arrived at with nothing to add thereto.

All the issues distilled by the Appellant having resolved in favour of the Respondent, bereft the Appeal of merit and dismissed by me. The judgment of the Lower Court is therefore

affirmed as done in the lead judgment.

Appearances:

Miss R. O. Igbabo For Appellant(s)

Mrs. G. O. Olowoporoku, DPP, Ondo State Ministry of Justice, with him, Ms B.B. Olarenwaju, PLO For Respondent(s)