UMAR v. STATE (2020)

UMAR v. STATE

(2020)LCN/15726(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/5CA/2020

Before Our Lordships:

JummaiHannatu Sankey Justice of the Court of Appeal

UzoIfeyinwaNdukwe-Anyanwu Justice of the Court of Appeal

James GamboAbundaga Justice of the Court of Appeal

Between

SALE UMAR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE CONTRADICTIONS IN THE EVIDENCE OF PROSECUTION WITNESSES THAT CAN BE FATAL MUST GO TO THE ROOT OF ITS CASE

DEFINITION OF CONSPIRACY

PRESUMPTION OF THE LAW ON THE EXISTENCE OF ANY FACT WHICH IT DEEMS LIKELY TO HAVE HAPPENED

Finally, the evidence before the trial Court discloses that the Appellant was found in possession of the stolen vehicle shortly after it was snatched from the PW1 and PW2 by four armed men, one of whom was the Appellant. Therefore, he is deemed to be either the robber or that he received the vehicle knowing it to be stolen unless he could account for his possession (which he did not). This presumption of law is provided in Section 167(a) of the Evidence Act, 2011 which provides-
“The Court may presume the existence of any fact which it deems likely to have happened regard shall be had to the common course of natural events, human conduct and public and private business… and in particular, the Court can presume that:

a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” JUMMAI HANNATU SANKEY, J.C.A

THE OFFENCE OF CONSPIRACY IS A MATTER OF INFERENCE TO BE DEDUCED FROM CERTAIN CRIMINAL ACTS OR INACTIONS OF THE PARTIES CONCERNED

WHAT IS THE ACTUAL COMMISSION OF THE OFFENCE OF CONSPIRACY

Consequently, in a charge of conspiracy, the actual commission of the offence is not necessary to ground a conviction for conspiracy. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. See Nwosu vs State (Supra), Obiakor vs State (2002) 10 NWLR pt 776 pg 612, Daboh vs State (1977) pg 5.
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 of them says in furtherance of the conspiracy would be admissible evidence against them even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu vs State (Supra). UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

MATERIAL CONTRADICTIONS IN THE TESTIMONIES OF THE PROSECUTION WITNESSES

The principle of law is well settled that where there are material contradictions in the testimonies of the prosecution witnesses, it will be wrong for a Court to act on such testimonies. See Amala Vs The State (2004) 12 NWLR pt 888 pg 520, Oluwafamo Alo Vs The State (2015) LPELR 24404. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

THE ONUS LIES ON THE PROSECUTION TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT

In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt by virtue of Section 138 of the Evidence Act. The burden does not shift Akinfe vs State (1988) 3 NWLR pt 85 pg 729, Aigbadion vs The State (2000) 4 SC pt 1 pg 1.
Although the burden of proving a charge against an accused is upon the prosecution, where, however, the prosecution has adduced evidence which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of Section 138 (3) 139, 141 and 142 of the Evidence Act, Nasiru vs State (1999) 2 NWLR pt 589 pg 87. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

THE NECESSITY OF IDENTIFICATION PARADE
It is not in every case that identificationparade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. Archibong vs The State (2004) 1 NWLR pt 855 pg 488, Aladu Vs State (1998) 8 NWLR PT 563 PG 618 Igbi Vs State (2000) 2 SC pg 67. Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused like in this case, a parade is not necessary. Recognition of an accused may be more reliable than identification parade. See Eyisi Vs The State (2001) 8 WRN pg 1. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

THE RIGHT OF PROSECUTION TO CALL WITNESES IS NOT A MERE PRIVILEGE BUT A PREROGATIVE
The law is that the right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. Accordingly, the prosecution is not bound to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case and, in so doing it has discretion in the matter. Even one credible witness if believed, is enough. Theophilus Vs State 1 NWLR pt 423 pg 139, Nwaeze Vs State (1996) 2 NWLR pt 428 pg 1.
It is in fact the duty of the prosecution to bring before the Court all relevant witnesses and evidence in their possession in order to prove their case beyond reasonable doubt and that is what the Respondent has done in this appeal. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Gombe State delivered by Hon. Justice B.L. Iliya on 21st of March, 2019 convicting the Appellant and four (4) others and sentenced them to death by hanging. The Appellant was dissatisfied with the outcome of the trial hence this appeal.

The brief facts of this case is that on or about 3rd July, 2014, a couple was robbed of their personal belongings by about five (5) men armed with guns and sticks. The couple were Robbed of about N350,000.00, their Toyota Corolla, cell phones et al. During investigations, 5 men were arrested and charged with various offences including conspiracy and armed robbery.

The trial started in earnest with the prosecution calling 7 witnesses and tendering 13 exhibits. The Appellant and co-accused testified for themselves and called no other witnesses nor tendered exhibits. At the end of the trial, the Appellant and others were found guilty of the crimes and sentenced to death.

The Appellant being dissatisfied filed his notice and 2 grounds of appeal on 13th June, 2019. The Appellantthereafter, filed an amended notice on 22nd June, 2019 containing 5 grounds of appeal. The Appellant also filed his brief on 22nd June, 2019 and both deemed as properly filed and served on 9th September, 2019.

In his Appellant’s brief, the Appellant articulated 3 issues for determination as follows:
i. “Whether from the evidence before the trial Court, the Respondent had proved it’s (sic) case beyond reasonable doubt as held by the learned trial judge?” (GROUND 4,2 & 3).
ii. “Whether the trial Court was not wrong by relying on conjectures and the confessional statements, of the Appellant’s co-accused in convicting and sentencing the Appellant for the offence of conspiracy and armed robbery?” (GROUND 1 & )
iii. “Whether or not the trial Court rightly applied and relied on Section 167 of the Evidence Act 2011 in convicting the Appellant.” (GROUND 5).

In response, the Respondent filed its brief by a Court order of 7th September, 2019 and deemed properly filed and served. The Respondent articulated 2 issues for determination as follows:
i. Whether from the totality of evidence adduced before the trial Court, the respondent had proved its case beyond reasonable doubt against the appellant for the offences of criminal conspiracy and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (special provision) Act 1990 (as amended). This issue relates to (grounds 1, 2, 3 and 4 of the Appellant’s brief of argument)
ii. Whether the trial Court rightly applied the provisions of Section 167 A of the Evidence Act 2011 (as amended) in convicting the appellant. This issue relates to ground 5 of the Appellants brief of argument).

ISSUES 1
The Appellant’s counsel stated that the Respondent did not prove the case against the Appellant beyond reasonable doubt as required by law. Also that there must be credible evidence linking the Appellant with the crime. Senkanmi AdebesIn Vs the State (2014) LPELR 22694, Section 135 Evidence Act (2011).

Counsel argued that in criminal cases, the prosecution had the burden of establishing the guilt of the Appellant by proving the essential elements of the charge. Bello Vs C.O.P. (2018) 2 NWLR Pt 1603 pg 327.

The essential ingredients of armed Robberythat the prosecution must prove are:
(a) That there was a robbery or series of robberies
(b) That the robbery was carried out by the use of offensive weapons.
(c) That the accused person participated in the armed robbery.

While in an offence of criminal conspiracy it has to be established that two or more people agreed to do or cause to be done an illegal act or an act which not illegal by illegal means.

Counsel argued that the identity of the Appellant was in issue and the prosecution failed to conduct an identification parade for Pw1 and Pw2 to identify the Appellant to prove really that indeed the Appellant participated in the robbery.

Counsel argued that neither the Pw1 nor the Pw2 described the Appellant to the police like they did in Court. This description counsel argued should have been given to the police at the earliest opportunity. See Abdullahi vs State (2008) 17 NWLR Pt 1115 pg 203.

There were contradictions in the evidence of Pw1 and Pw2 as Pw1 and Pw2 were the only eye witnesses to the crime. The Pw1 Stated that the Appellant was the only one not wearing a mask. Whereas Pw2 stated that they were all wearing masks. Pw1 also said Pw2 was returning from Abuja whilst he said he was returning from Tasfir. See Ogogovie Vs The State (2016) LRCLR 4050.

Counsel argued that Pw7 recorded Appellant’s statement in English even though he gave it in Hausa. See Exh 10 and 11. The hausa version of the statement must be tendered for the English version to be admissible in Court. Counsel urged the Court to hold that Exh 10 and 11 are hearsay evidence and should be discountenanced see AJUDUA vs FRN (2017) 2 NWLR pt 1548 pg 1. Counsel urged the Court to resolve this issue in favour of the Appellant.

ISSUE 2.
Counsel referred to the case of Cajethan Okoro Vs The State (20128) LPELR 44273, where the Court held.
“As a general rule, when more than one person are jointly charged with a criminal offence, and the other makes a confession, and such a statement is given in evidence, the Court shall not take such statement into consideration against a co-accused unless such co-accused adopt it”

The Appellant did not admit knowing any of the co-accused and did not admit to participating in the alleged robbery.

Counsel argued that the prosecution tendered Exh. 6, a bond to produce exhibits to police or the Court. By Exh 6, the items robbed were to be produced for the purpose of tendering as exhibit before the Court.

Counsel submitted that the prosecution deliberately released and allowed PW2 to sell the alleged vehicle instead of producing the vehicle to Court as exhibit for Court’s inspection. The vehicle having not been produced before the trial Court, the presumption is that if the vehicle was produced before the trial Court it would have been unfavourable to the prosecution case. We rely on SECTION 167 (D) OF THE EVIDENCE ACT 2011. Also ONWUJUBA V. OBIENU (1991) 4 NWLR (PT. 183).

Counsel reiterated that the vehicle and the telephone handsets were not tendered in Court. He argued that, the prosecution failed to produce witnesses to testify as to how the vigilantes arrested the Appellant. See Bello Vs C.O.P (supra).

ISSUE 3.
Counsel referred the Court to the conclusion of the trial judge when he held that.
“Having found the 1st accused person with the robbed vehicle, the burden is on him to give account for his possession, otherwise he can either be the thief orhas received the good knowing it to be stolen as provided for under Section 167A of the E.A 2011 as amended.”

Counsel argued that the Appellant’s gave evidence as to how he came about the vehicle found in his possession. Counsel referred the Court to pg 277-298 of the Record of Appeal and the statement of the accused to the police. Counsel finally urged the Court to resolve this issue in favour of the Appellant and discharge him.

In response, the Respondent articulated 2 issues and argued them in his brief of argument.

ISSUE 1.
Respondents counsel submitted that an offence of criminal conspiracy can be committed where persons have acted either by agreement or in concert. Mere agreement to commit an offence is sufficient. See Oduneye Vs State (2001) 83 LRCN pg 1, Njovens Vs State (1973) 8 NSCC pg 366, Daboh vs State (1977) SSC 222. Conspiracy is rarely ever proved by direct evidence. It is invariably an offence that is inferentially deduced from the act of the parties thereto, which are focused towards the realization of their common or mutual criminal purpose. Sule vs the State (2009) 7 LRCNCC pg 1.

Counsel submitted further that their individual statement and utterances corroborated each other and an inference can be drawn for a common purpose.

Counsel submitted that armed robbery is committed where at the time of the commission of the robbery, the accused is proved to have been armed with firearms or offensive weapons. See Onyenye vs the State (2012) vol 212 LRCN pg 107 where the Supreme Court held that the prosecution had the burden of proving beyond reasonable doubt in accordance with Section 138 of the Evidence Act. In proof the prosecution must prove that:
(1) That there must have been a robbery or series of robberies
(2) That each robbery was an armed robbery
(3) That the accused was one of those who took part in the robbery while armed. See Nwaturuocha vs the State (2011) 9 LRCNCC pg 1, Bozin vs State (1985) 2 NWLR pt 8 pg 465.

Counsel conceded that even though the co-accused made confessional statements implicating the Appellant but such statements are not admissible against the Appellant by virtue of Section 29 Evidence Act 2011. Usman vs The State (2013) 5 SCNJ 65, Arogundare Vs The State (2011) 9 LRCNCC 193 Owbode VS The State (2011) 9 LRCNCC pg49.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel also argued that where the PW2 was coming from was immaterial and does not amount to a material contradiction in the testimony of Pw1 and Pw2. See Olayinka Afolalu vs The State (2012) 10 LRCNCC pg 30.

Counsel also submitted that identification parade was not obligatory where there is good and cogent evidence linking the Appellant to the crime. Every case must be considered on the evidence adduced and its own particular circumstances. See Alabi vs State (1993) 13 LRCN pg 977, (1993). Moreover, the Pw1 stated that the light was on, the Appellant was standing near her and had no mask on. She therefore, positively identified or observed him well during the robbery and needed no identification parade to pick him out.

Counsel further submitted that the Appellant’s counsel made heavy weather that the prosecution did not call the vigilantes who arrested the Appellant to testify. Counsel submitted that there was no obligation to call a host of witnesses. The prosecution has a right to call the number of witnesses needed to prove its case. Counsel urged the Court to resolve this issue in favour of the Respondents who proved their case beyond a reasonable doubt.

ISSUE 2
Counsel referred the Court to Section 167 Evidence Act 2011 (as amended).
“A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”

Counsel submitted that the doctrine of recent possession can be applied in this case. The ingredients required to be proved in Section 167 Evidence Act 2011 are the following:
i. The accused was found in possession of some goods
ii. The goods were stolen
iii. The possession was soon after the theft
iv. There is a failure to account for the possession

See State Vs Okonkwo (1988) ILRCNCC pg 33, Salami Vs State (1988) 3 NWLR pt 85 pg 671. The Appellant was found with the stolen car a day after the robbery. The Appellant claimed that it was the 2nd accused Aminu Abdullahi that gave him the stolen car to travel to Jalingo. In his testimony in Court the Appellant claimed he bought the car from one Alhaji Ali who did not testify as to the veracity of this assertion. His extra-judicial statement and that in Court are therefore, contradictory, there was no credible explanation how he was in possession of the stolen car so soon after the robbery. The law presumes he is either the thief or the receiver of the car knowing it to be stolen. Madagwa vs State (1988) 5 NWLR pt 92 pg 60.

Counsel therefore, urged the Court to hold that the Respondent has proved the case against the Appellant beyond reasonable doubt.

RESOLUTION
The Appellant in this appeal was charged in the lower Court with four (4) others with a three count charge of criminal conspiracy, armed robbery and abatement contrary to Section 5 (b), 1(2)a of the Robbery and Fire Arms (special provisions) Act 1990 (as amended). It was alleged at the trial that the four accused including the Appellant conspired to rob with weapons to wit guns and sticks.

To prove its case of conspiracy against the Appellant, the prosecution led evidence to prove that in fact, the Appellant was one of the accused persons who conspired to Rob Pw1 and Pw2.

In proof of conspiracy, Pw1 stated that the Appellant was one of the robbers who robbed them of her husband’s Toyota Corolla Registration number GME 812 A A, Three Hundred and Fifty Thousand Naira (N350,000.00) and 4 handsets. Pw1 in her evidence stated that she recognized the Appellant because he stood near her and did not cover his face. She also stated in evidence that there was electricity therefore, the place was properly illuminated. Apart from that the Appellant was arrested the following day in possession of their stolen car.

The other co-accused gave evidence of how all of them planned the robbery and met at the scene of crime. After the robbery they all decided that the Appellant was going to drive the stolen car to Yola for it to be sold and the proceeds returned and shared.

Pw2 called his two (2) stolen phones after the robbery. The Zain was picked and left open that he could hear the accused persons discussing how to drive the stolen car to Yola. Pw2 and his friends on the basis of this information took a chance and started driving towards Yola the following day. As luck would have it, they sighted Pw2’s stolen vehicle. They then gave a chase and the Appellant on sighting them tried to make a U-turn when he hit a kerb. He was subsequently apprehended by the vigilantes and brought back to Gombe.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The offence of conspiracy is not defined in the Criminal Code or Penal Code. Therefore, direct positive evidence of the plot between the co-conspirators is hardly capable of proof. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned Oduneye Vs the State (2001) 13 WRN pg 88.
The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They need not have started the conspiracy at the same time. The bottom line of the offence is the meeting of the minds of the conspirators. Nwosu Vs State (2004) 15 NWLR pt 877 pg 466. The law realizes that there cannot be a conspiracy unless there is a concluded agreement. In this case, three of the four (4) accused persons together with the Appellant met at the home of Pw1 and Pw2. Their home is not a club or a public place where people go to and meet there without a pre-plan. For the accused persons to meetthere, there must have been a meeting of the mind by them.
It is indeed very difficult to prove the offence of conspiracy. It is a matter of inference from certain acts of the parties. Consequently, in a charge of conspiracy, the actual commission of the offence is not necessary to ground a conviction for conspiracy. All that is needed is a meeting of the minds to commit an offence and this meeting of the minds need not be physical. See Nwosu vs State (Supra), Obiakor vs State (2002) 10 NWLR pt 776 pg 612, Daboh vs State (1977) pg 5.
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 of them says in furtherance of the conspiracy would be admissible evidence against them even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu vs State (Supra).
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 each of them is deemed to have committed the offence. Thus, if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence, of any degree, for the purpose of overcoming resistance, the accused person will be guilty. Ubierho vs State (2005) 5 NWLR pt 919 pg 644, Muonwem vs Queen (1963) 2 SC NLR pg 172, Ofor vs Queen (1955) 15 WACA pg 4.

In this appeal, the Appellant was placed at the scene of the robbery as Pw1 identified him positively. The Appellant was also seen so soon thereafter, the day after the robbery with the stolen car. I believe that the Appellant was one of the conspirators in this appeal and the Respondents has proved conspiracy against the Appellant with the other co-accused beyond reasonable doubt.

The Appellant’s counsel claimed that the prosecution had not proved the case against the Appellant beyond reasonable doubt. The Respondent in proof of its case against the Appellant situated the Appellant at the scene of the crime by the evidence of Pw1. Pw2 also gave evidence as to how he overheard the conversations of the accused persons when he called his phoneand the robbers kept it open. They discussed how the vehicle would be driven to Yola and sold. The proceeds were to be shared among them.

The prosecution proved that the Appellant was one of the robbers who robbed Pw1 and Pw2. The Appellant was arrested the very next day with the stolen car belonging to Pw2. The Toyota Corolla Reg. No. GME 812 AA was found in the possession of the Appellant on the way to Yola. The Appellant had switched the car registration number.

When the Appellant was arrested, his house was searched. This search yielded:
1. The Plate number of Pw2’s vehicle GME 812 AA
2. A bag of documents belonging to Pw2 was also found in the Appellant’s house.

The Appellant himself stated that.
“…Aminu gave the motor vehicle corolla with reg no: GME 812 AA to travel to Taraba State. I then changed the plate number with my own number AG 189 RAN and kept the car plate number GME812AA in my house…”

This act of changing the vehicle number to his own number meant that the Appellant was privy to the fact that the vehicle was a stolen car. The plate no of the vehicle of Pw2 GME 812 AA was found in the Appellant’s house with a bag containing documents belonging to Pw2. The Appellant in possession of stolen vehicle is either the thief himself or a receiver of stolen goods; See the case of Osakwe vs Queen(1963) LPELR, 15 482 where the Supreme Court held.
“Section 427 of the Criminal Code, which relates to the offence of receiving provides that” for the purpose of proving the receiving anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it …proof is needed that the accused person, whether alone, has already had the thing in his possession or has already aided in concealing it or disposing of it.” Per Bairamain, JSC.

The Appellant’s counsel harped on the contradictions in the evidence of the witnesses. Pw1 in her testimony stated that her husband was returning from Abuja on the day of the Robbery. The Pw2 in his testimony said he was coming back from Tasfir.

Also the Pw1 stated that the Appellant was not masked whilst Pw2 said all the robbers were masked.

The principle of law is wellsettled that where there are material contradictions in the testimonies of the prosecution witnesses, it will be wrong for a Court to act on such testimonies. See Amala Vs The State (2004) 12 NWLR pt 888 pg 520, OluwafamoAlo Vs The State (2015) LPELR 24404.

In this appeal, there was a discrepancy with the evidence of Pw1 and Pw2 where the Pw2 was coming from. Is this a material contradiction? How does it affect this case? Whether the Pw2 was coming back from Abuja or Tasfir is not material. It does not affect the idea that the Pw2 was attacked when he got back to his home. The locus of the robbery is what is material and not where the Pw2 was coming back from.

The Pw1 clearly stated that the Appellant was not masked. She could recognize him because he stood by her and there was electricity. This meant that she saw him very clearly and described what he was wearing on that day.

Pw2 knew that there were about four robbers who attacked him with guns and sticks. He said they were all masked. In that life and death situation and he being the main target of the attack might not have observed the Appellant specifically. Was this a material contradiction? The contradiction is material in that he said all were masked. He did not identify the Appellant at the scene. However, the Appellant was seen with the stolen vehicle so soon thereafter.

It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubt in the mind of the trial Court that an accused is entitle to benefit there from. Theophilus Vs State (supra).

In all, visual identification is one of the best forms of identification in a criminal case. See Ndukwe Vs State (2009) 2 SCN pg 223 Per Rhodes-Vivour Isah Vs State (2017) LPELR 43472.

The Appellant in his evidence testified that one Alhaji Aminu Mohammed sold the car to him. In his extra judicial statement, he said that Aminu Abdullahi lent him the car to travel to Jalingo. These are the testimonies of the Appellant. He neither proved the assertion of how he came by the stolen car by any iota of evidence.

In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt by virtue of Section 138 of the Evidence Act. The burden does not shift Akinfe vs State (1988) 3 NWLR pt 85 pg 729, Aigbadion vs The State (2000) 4 SC pt 1 pg 1.
Although the burden of proving a charge against an accused is upon the prosecution, where, however, the prosecution has adduced evidence which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of Section 138 (3) 139, 141 and 142 of the Evidence Act, Nasiru vs State (1999) 2 NWLR pt 589 pg 87.

The Appellant even though he stated how he came by the stolen vehicle but he did not profer any proof to that therefore, the Respondent proved that he was either the thief or the receiver of the stolen goods, the vehicle.

The Appellant had discredited the identification of himself by the Pw1. Appellant claimed that the piece of evidence by Pw1 and Pw2 was contradictory. The Appellant questioned his identification by Pw1 and insisted that the prosecution ought to have conducted an identification parade.

It is not in every case that identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. Archibong vs The State (2004) 1 NWLR pt 855 pg 488, Aladu Vs State (1998) 8 NWLR PT 563 PG 618 Igbi Vs State (2000) 2 SC pg 67. Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused like in this case, a parade is not necessary. Recognition of an accused may be more reliable than identification parade. See Eyisi Vs The State (2001) 8 WRN pg 1.

As in the present case the Pw1 recognized the Appellant. She testified that he had no mask and was standing beside her. There was also light even though it was in the night. Pw1 properly identified the Appellant and to buttress the fact that the Appellant was part of the robbery he was found in possession of the stolen car. This, he could not explain convincingly to the Court how he came into that possession.

The Appellant in his brief argued that the vigilantes that arrested the Appellant with the vehicle were not called to testify in proof of the prosecution’s case. The law is that the right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. Accordingly, the prosecution is not bound to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case and, in so doing it has discretion in the matter. Even one credible witness if believed, is enough. Theophilus Vs State 1 NWLR pt 423 pg 139, Nwaeze Vs State (1996) 2 NWLR pt 428 pg 1.
It is in fact the duty of the prosecution to bring before the Court all relevant witnesses and evidence in their possession in order to prove their case beyond reasonable doubt and that is what the Respondent has done in this appeal.

Appellant complained about the hausa version of the Appellant’s statement to the police. Both the English and hause versions were tendered in evidence as Exhibit 1 and Exhibit 1A after a trial within trial. The Appellant’s statement was not a confessional statement in any way whatsoever.

In sum, I believe the Respondent proved its case against the Appellant beyond reasonable doubt and I so hold. This appealis unmeritorious it is dismissed. The judgment of the lower Court is affirmed. The conviction and sentencing of the Appellant to death is affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the draft of the Judgement just delivered by my learned brother, Ndukwe-Anyanwu, J.C.A. I agree with the reasoning and conclusion therein. I will add a few words.

Conspiracy has been defined to be an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. Where persons are charged with criminal conspiracy, it is usually required that the conspiracy be proved and the persons charged be proved to have engaged in it. However, since it is not always easy to prove the actual agreement, Courts usually consider it sufficient if circumstances are established by evidence from which it would be considered safe by the Court to reasonably infer or presume a conspiracy. See the cases of NkemBouwor V State (2013) LPELR-21010(CA) 8-9, C-D, per Ogunwumiju, JCA; Daboh V State (1977) All NLR 146, per Udo Udoma, JSC.

In the instant case, the evidence of PW1 and PW2 are consistent that they were robbed by four armedmen on the date in question. Although PW2 stated that the men were masked, PW1 was categorical in her evidence that she was able to see the face of the Appellant whom she said was not masked; and that this was so because the area was illuminated by electricity. Thus, she was able to make a positive identification of the Appellant as one out of the four robbers who robbed them on the date in question. From the facts in evidence which disclose that the four robbers (inclusive of the Appellant) acted in concert to rob the PW1 and PW2, it could safely be inferred that by acting in concert together, they conspired to commit the robbery. This was sufficient evidence to prove the offence of conspiracy.

In addition, since the PW1 positively identified the Appellant at the scene of crime, it made the issue of an identification parade unnecessary and unwarranted. The law is trite as to instances when an identification parade will be necessary. An identification parade will be necessary in the following circumstances:
1. When the victim of the crime never knew the offender or accused before.
2. Where the victim was confronted by the offender for a very short while.

3. Where the victim, due to time and circumstance, might not have the opportunity of observing the features of the accused person or offender.
The law is equally settled that it is not in all cases that an identification parade will be necessary. The truth is that an identification parade is not fool-proof of the identity of the offender of the offence. Therefore, if the identity of the perpetrator of the offence can be ascertained by other means recognized by law, an identification parade will not be necessary. For instance, (i) if the victim knew the accused before the incident or (ii) had sufficient opportunity to observe the accused when the offence was being committed or (iii) the accused was arrested at the scene of crime or (iv) shortly after the offence was committed, then an identification parade will be unnecessary.
No wonder the apex Court in the case of Okanlawon V State (2015) 6-7 SC (Pt. 1) 115, per Ariwoola, JSC stated thus on the matter of identification:
“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence.

Therefore, whenever the trial Court is confronted with evidence of identification, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged.”
See also Nomayo V State (2018) LPELR-44729(SC) 12-14, per Peter-Odili, JSC; Folorunsho V State (2014) LPELR-24215(SC) 25-26, per Ariwoola, JSC; Sodiq V State (2020) LPELR49760(CA) 38-45, E-F, per Tobi, JCA.

In the instant appeal, the Appellant was positively identified by the PW1 at the scene of crime. He was not masked and the lighting was good. When the PW2 called his two stolen phones soon after the robbery, his Zain line was answered and he overheard the accused persons talking about driving the car to Yola. Based on this conversation, the PW2 in the company of his friends, drove on the road to Yola and as fate would have it, encountered the robbers on the road with the stolen car. In trying to get away with the car, they hit a kerb and were apprehended with the help of vigilantes. Even though the plate numbers had been changed, upon a search warrant being executed in the house of the Appellant, the original plate numbers and the vehicle particulars were found there.

From a conglomeration of these pieces of evidence, I do not have the slightest doubt that the Appellant was properly and rightly identified by the PW1 as one of the four robbers who robbed them on the date in question. An identification parade was therefore completely unwarranted given the circumstances of this case.

a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

Thus, based on the totality of the evidence adduced before the trial Court, I am of the firm view that the trial Court acted rightly when it convicted the Appellant for the offences of conspiracy and armed robbery as charged.

It is therefore for this reason and for the detailed reasons contained in the lead Judgement that I find the Appeal devoid of merit. It fails and is dismissed. I abide by the consequential orders in the lead Judgement.

JAMES GAMBO ABUNDAGA, J.C.A.: I read in advance the draft of the Judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. I adopt the reasoning and conclusion reached in the judgment to the effect that the appeal is unmeritorious, and thus dismissed.

In agreeing with my learned brother, I have a compelling desire to state my view on a few issues especially in the light of the submission of the Appellant’s counsel that there are contradictions in the evidence of the prosecutionwitnesses, and that the guilt of the Appellant was not proved beyond reasonable doubt.

Now, it is indisputable that the stolen car was found in the possession of the Appellant the following day after it was stolen. The Appellant’s explanation in relation thereto is contradictory. On one hand, he claimed that it was the 2nd accused person who gave it to him to use to travel to Jalingo, and on the other hand, he claimed that he bought the car from the 2nd accused person who did not verify this claim. Furthermore, when the Appellant noticed PW2 and his friends chasing him as he drove the stolen car to Yola he tried to make a U-turn and in the process hit a kerb.
Again, a search in the house of the Appellant after his arrest led to the discovery of the following items:- the number plate of PW2’s vehicle, and a bag of documents belonging to Pw2. The Appellant himself in his statement to the police admitted changing the number plate of the stolen car with his own car’s number plate. All these go to show that the Appellant could not account for the possession of the stolen car, and must therefore be presumed to be the armed robber. Thelaw is settled on that position. See Gabriel Ogogovie V. The State (2016) LPELR-4050(SC), Per Sanusi, JSC (PP.53-57, Paras D-C), Wale Banjo V. The State (2011) LPELR-5090 (CA), per Ikyegh, JCA (PP 16-20, para c).

The Appellant’s counsel also harped on the contradictions in the evidence of the prosecution witnesses in regard to where the Pw2 was going to or coming from when they were attacked, and as to whether the Appellant was masked or not. My learned brother made a faultless finding on this contention in his Judgment.

I cannot but adopt it. But suffice it to state, that the law is settled that the contradictions in the evidence of prosecution witnesses that can be fatal to its case must be fundamental and go to the root of its case. In the face of unquestionable evidence that the stolen car was found in possession of the Appellant soon after the theft and the Appellant’s failure to satisfactorily account for his possession, the so-called contradictions complained of by the Appellant must necessarily be unmomentous.

It is on account of the aforestated stark realities in this appeal, and his Lordship’s detailed and sound resolution of other germane issues in the judgment that I too, without any iota of doubt find this appeal lacking in merit, and dismiss same.

In consequence, the Judgment of the lower Court is hereby affirmed.

Appearances:

A. S. Muazu Esq. For Appellant(s)

Zainab A. Rasheed (Solicitor General/Permanent Secretary, Ministry of Justice, Gombe State), with him, Abdulkadir Umar Esq. For Respondent(s)