OLABISI OLAKUNLE v. THE STATE (2014)

OLABISI OLAKUNLE v. THE STATE

(2014)LCN/6953(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of March, 2014

CA/IL/C.76/2013

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

The law is that it is the primary duty of the trial court to evaluate the testimony adduced at the trial and ascribe probative value thereto. After all it is the trial court that was privileged to see and hear the witness and it alone can pronounce on their credibility. Where therefore a trial court has satisfactorily carried out this duty, the appellate court has no cause to interfere with the findings of the trial court. Where however the trial judge has abdicated this primary duty, or has failed to properly utilize the advantage of seeing and hearing the witnesses testify, the appellate court is in a good position to evaluate the evidence provided it does not involve credibility of witnesses. See Fagbenro vs. Arobadi (2006) All FWLR (pt. 310) 1575; Saleh vs. Bank of the North Ltd (2006) All FWLR (Pt. 310) 1600. PER ISAIAH OLUFEMI AKEJU, J.C.A.

WHETHER A CCONTRADICTION OR INCONSISTENCY IN EVIDENCE IN EVIDENCE MAY AFFECT THE DESION OF A TRIAL COURT OR WARRANT ITS BEING SET ASIDE

BURDEN OF PROOF IN CRIMINAL PROCEEDINGS: INGREDIENTS TO BE PROVEN TO ESTABLISH AN ALLEGATION OF ARMED ROBBERY

It has been well settled that in our system of administration of criminal justice, the burden of proving the charge against the accused person is fixed on the prosecution who must prove all the essential ingredients of the offence alleged. See Arua vs. The State (1990) 6 NWLR (pt. 155) 125.

The onus of proof of commission of crime as well laid down in section 135 (1) of the Evidence Act, 2011 is beyond reasonable doubt. The prosecution in a criminal charge therefore must proof the essential elements of the offence beyond reasonable doubt. See Sunday Ani vs. The State (2009) 16 NWLR (pt. 1168) 443; Nasiru vs. State (1999) 2 NWLR (Pt 589) 87 (1999) 1 SC 1.
The onus of proving beyond reasonable doubt however does not mean more than placing before the court such evidence that is compelling and conclusive enough that the accused committed the offence. The prosecution does not have to proof beyond every shadow of doubt. See Miller vs. Minister of Pensions (1947) 2 All ER 372.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

OLABISI OLAKUNLE Appellant(s)

AND

THE STATE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kwara State sitting at Ilorin delivered on 18th July, 2013. Pursuant to the leave granted on 16/4/2012 to prefer a charge in the High Court under section 185(B) of the Criminal Procedure Code Law, and Rule 3(1) & (2) of the Criminal Procedure (Application for Leave To Prefer A Charge in the High Court Rules) 1970, the appellant and one IBRAHIM ADEYEMI were arraigned on 28th May, 2012 on a charge of four counts alleging conspiracy and armed robbery with other persons at large as follows:

1. That you IBRAHIM ADEYEMI and OLABISI OLAKUNLE together with Olaniyi and Taiye (At large) on or about the 13/10/2011 at Ojomo Estate Offa Garage, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to commit an illegal act to wit; while armed with guns robbed one Adegbenle and you thereby committed an offence punishable under section 6(B) of the Robbery and Firearms (Special provision) Act, Laws of the Federation of Nigeria, 2004.

2. The you Ibrahim Adeyemi and Olabisi Olakunle together with Olaniyi and Taiye (At large) on or about the 13/10/2011 at Ojomo Estate Offa Garage Ilorin, Kwara State within the jurisdiction of the Honourable Court while armed with guns robbed one Adegbenle Olawale and you thereby committed an offence punishable under section 1(2) of the Robbery and Firearm (Special Provision) Act Cap. R. 11 Laws of Federations of Nigeria 2004.

3. That you Ibrahim Adeyemi and Olabisi Olakunle together with Olaniyi and Taiye (At large) on or about the 13/10/2011 at Pipeline Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to commit an illegal act to wit: while armed with guns rob one Mrs. Bunmi Afolayan and you thereby committed an offence punishable under Section 6(B) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004.

4. That you Ibrahim Adeyemi and Olabisi Olakunle together with Olaitan and Taiye (At large or about the 13/10/2011 at pipeline Road Ilorin, Kwara State within the jurisdiction of this Honourable Court while armed with guns robbed one Mrs. Bunmi Afolayan and you thereby committed an offence punishable under section 1(2) of the Robbery and Firearms (Special Provision) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.

The two accused persons pleaded not GUILTY and the case went into trial. The prosecution called three witnesses as PW1, PW2 and PW3, while the appellant testified in his own defence.
At the conclusion of trial and after the adoption of addresses by the learned counsel, the learned trial judge found the two accused persons guilty of conspiracy and armed robbery, convicted them and sentenced them to death by hanging.

The appellant who was the 2nd accused felt dissatisfied with the judgment of the trial court and filed a Notice of Appeal on 6/8/13 with 7 grounds of appeal. The Appellant’s Brief settled by Sheni Ibiwoye Esq. of counsel, was filed on 10/9/13 while the Respondent’s Brief prepared by Kamaldeen Ajibade Esq. Hon. Attorney General and Commissioner for Justice, Kwara State was fired on 26/11/13 and deemed as properly filed on same date. The appellant subsequently filed the Appellant’s Reply Brief of Argument on 10/12/13.

At the hearing of the appeal, the parties were represented by their respective counsel. Seni Ibiwoye of counsel for the appellant adopted the Appellants’ Brief as well as the Reply Brief and urged court to allow the appeal, while the Hon. Attorney General of Kwara State, Kamaldeen Ajibade Esq. for the Respondent adopted the Respondent’s Brief and urged that the appeal be dismissed.
In the Appellant’s Brief, the Learned Counsel distilled the following seven issues for determination and argued them seriatim;

1. Whether the learned trial judge was right to have convicted and thereafter sentence the Appellant to death on the charge of criminal conspiracy and armed robbery when the evidence of PW3 (Sgt. Monday Ogidiagba) the only investigative police officer is that the appellant is a robber and not an armed robber.

2. Whether the learned trial judge was right when he adopted the unproved elements of armed robbery to convict and subsequently sentence the Appellant to death.

3. Whether the learned trial judge was right to have relied on the contradictory and unsubstantiated testimonies of PW2 and PW3 to convict and sentence the Appellant to death.

4. Whether the learned trial judge was right to have relied on the case of ONYENYE vs. THE STATE (2013) NWLR (pt. 643) 1810 at 1832 – 1833; (2012) NWLR (pt. 1324) 586 at 617 paragraphs E – G in inferring that the Appellant criminally conspired with another to commit the offence of armed robbery.

5. Whether the learned trial judge was right when he convicted and subsequently sentenced the Appellant to death based on the purported identification of the Appellant by PW2 (Mrs. Victoria Bunmi Afolayan).

6. Whether the learned trial judge was right to have admitted, subsequently relied on and thereafter convict the Appellant based on Exhibit AA2 (the Appellant’s confessional statement).

7. Whether the Respondent proved its case beyond reasonable doubt against the Appellant.

Each of the grounds respectively donated one issue for determination as listed seriatim i.e. Grounds 1 – 7 produced issues 1 – 7 respectively. The seven issues were adopted by the Respondent who also proferred arguments thereon. The appeal will be determined upon those seven issues.

On the first issue, the learned counsel for the appellant contended that it was wrong for the learned trial judge to have convicted the appellant and sentence him to death for the offence charged on the evidence of the PW3, Sgt. Monday Ogidiagba the only IPO whose evidence is that the appellant is a robber and not an armed robber or that the only work he (IPO) knew the appellant did was robbery.
Learned counsel submitted that the offences of “robbery” and “armed robbery” are distinct offences as recognised under the Robbery And Firearms (Special provision) Act Cap R11 Laws of the Federation of Nigeria, 2004 i.e. Section 1(1) and 1(2),(a), (b) and (c) respectively with the result that while the offence of robbery carries 21 years imprisonment, the punishment for armed robbery is death sentence upon conviction.
It was contended by the learned counsel that what the court considers in the final analysis is the evidence adduced and not the allegations in the charge, and since the PW3 who investigated the case categorically stated that the appellant’s work is robbery, the conviction for armed robbery is unjustifiable.
The learned counsel submitted that the trial court based its findings and conclusions on mere speculation and assumptions but courts entertain facts alone and not speculation, citing Ibori vs. FRN 3 NWLR (pt. 1127) 94 and Olalomi Ind. Ltd vs. NIDB Ltd (2009) 16 NWLR (pt. 1167) 266.

The learned Attorney General argued on this issue that the reference by the PW3 to the appellant as a robber was made under cross examination when the PW3 was asked whether he knew what the appellant was doing for a living which statement or answer could not have occasioned any speculation by the learned judge.
It was submitted that the judgment of the learned trial judge was based on the evidence led and established ingredients of armed robbery; and conviction for either armed robbery or robbery will depend on the evidence led at the trial; Ifejirika vs. State (1999) 2 NWLR (pt. 593) 59; Onugbogu vs. State (1974) 9 SC 1; Morka vs. State (1998) 2 NWLR (pt. 537) 294.

In the Appellant’s Reply Brief, the learned counsel cited the case of Akpan vs. State (1994) 8 NWLR (pt. 361) 226 to submit that the judge however wise, creative and imaginative he may be must be confined to evidence and argument of the litigants. It was submitted also, that it is not the function of the trial judge to supply the evidence in a case.

I have meticulously gone through the record of this appeal and I have particularly examined the proceedings at the trial court as far as the charge, the evidence adduced thereon and the judgment of the trial court are concerned. It is not in any doubt from the four counts which I had earlier set out in this judgment that the appellant was alleged of criminal conspiracy and armed robbery, not robbery. The charge was not amended throughout trial and three witnesses testified for the prosecution one of them being the victim of the alleged armed robbery who was the PW2. At the end of the trial the learned judge considered the evidence of both the prosecution witnesses and the appellant himself before concluding at pages 105 – 106 of the record thus:

“Accordingly, I hold that the prosecution has established the offences of criminal conspiracy and Armed Robbery against the two accused persons beyond reasonable doubt.”

He therefore convicted the appellant and his co accused and sentenced them to death in line with the provision of section 1 (2) of the Robbery and Firearms Act Cap R 11 Laws of the Federation of Nigeria 2004 under which they were charged.
The statement by the PW3 that “The only work I know they do is robbery” was in response to a question under cross examination.
It is the duty of the trial judge to hear evidence and draw inferences and conclusions. It is not the function of the witness to take over that duty. The judge is therefore not bound by that piece of evidence from PW3. See Na-Batura vs. Mahuta (1992) 9 NWLR (Pt. 263) 85.

Moreover, the difference between robbery and armed robbery as correctly stated by the learned counsel for appellant is whether the robber is armed with offensive weapon. See Section 1(1) and 1(2), (a), (b) and (c) respectively of the Robbery and Firearms (special provision) Act Cap R11 Laws of the Federation of Nigeria 2004 for the definition of robbery and armed robbery respectively. Where a robber is proved to be in possession of an offensive weapon in the course of robbery, the proper conviction is for armed robbery.
The PW3 was not the only witness for the prosecution and the piece of evidence now in issue was not his only evidence. Apart from that answer, there is evidence from the PW3 himself and the other witnesses that the trial court rightly received and considered in convicting the appellant.
I resolve this issue against the appellant.

On the second issue, the appellant contended that the learned trial judge adopted the unproven elements of armed robbery to convict and sentence the appellant to death. The offence of armed robbery, as submitted by learned counsel is established by proving the following ingredients;
(1) That there was robbery
(2) That the robbery was an armed robbery
(3) That the accused person was the armed robber or was among them.
The cases of Osetola vs. The State (2012) 17 NWLR (Pt. 1329) 25; Okudo vs. The State (2011) 3 NWLR (pt. 1234) 209 and State vs. Salawu (2012) All FWLR (pt. 614) 1 were cited.

It was contended that the Respondent who must establish all the above ingredients beyond reasonable doubt failed to do so and failed to prove that appellant was in possession of firearms or any other offensive weapon or was arrested with any such weapon as no firearm or offensive weapon was tendered at the trial. The best the respondent placed before the court as proof of armed robbery was the statement of the PW2 that she with her daughter were robbed with guns which the appellant denied in evidence and was not shaken under cross examination.

For the respondent it was submitted that production of the ammunition used by an accused person is not one of the ingredients of the offence in a trial for armed robbery, it is enough if the ammunition or weapon used comes within the meaning of offensive weapon under the Firearms Act, citing Okudo vs. The State (2011) 3 NWLR (pt. 1234) 209. The evidence of the PW2 in the instant case is direct and cogent enough on the armed robbery and the evidence was sufficiently corroborated by that of the appellant himself in exhibit AA2.

In the Reply Brief, the appellant’s counsel submitted that the case of Okudo vs. The State (supra) does not help the respondent because the respondent has in the instant case, failed to show that the accused person was armed with a firearm or was in company of any person so armed at the time of commission of the offence. It was submitted, with reliance on Al-Hassan vs. The State (2011) 3 NWLR (pt. 1234) 261 that it is the duty of the prosecution to prove its case against an accused person beyond reasonable doubt but all the essential ingredients of armed robbery as an offence against the appellant were not established in the instant case.

At the trial of this case, the PW2 was Mrs. Victoria Bunmi Afolayan of No. 6, Afolabi Oyinloye Street, off pipeline, Ilorin a civil servant. Her evidence on pages 60 – 61 is briefly that on 13/10/2011 as she drove to the gate of her house at about 8pm, with her daughter inside her car, somebody ordered her to come down from the car and brought out gun which he pointed at her threatening to shoot her. The PW2 then came out of the car, the 2nd accused, now appellant pulled her ears to remove her earring which she helped him to do and he cut her necklace, collected her wristwatch and wedding ring while her daughter was ordered to lie on the floor and the 1st accused collected the earring and handbag of her daughter. Meanwhile two other persons remained in a car that followed her to the gate of her house. The accused persons drove her car away.
The PW2 then reported the incident at the ‘A’ Division of police in Ilorin. The car was later recovered in Ibadan and returned to her on bond.

Monday Ogidiagba, a police Sgt. with No. 176696 attached to SARS at police Headquarters Ilorin testified as PW3 and confirmed that the PW2 reported a case of criminal conspiracy and armed robbery of her Toyota Camry Car with Reg. No. Lagos 737 FST snatched at gun point by 4 suspected armed robbers. One Mr. Adegbenle Olawale also reported the robbery of his own Toyota Camry Car at gun point. The PW3 later received message that the PW2’s car had been intercepted by police within Ibadan with two suspects inside, while the other Toyota Camry Car was also found in Ibadan, but the two occupants escaped. The two cars were handed over to him by police in Ibadan together with the appellant and his co-accused which cars were released to the owners on bond.
The PW1, the exhibit keeper also lends credence to the evidence of this PW3 as to the custody of the two cars and their release on bond to the PW2 and Mr. Adegbenle Olawale.

In the allegation of armed robbery as in this case, the prosecution has to establish the ingredients of the offence, which are; (1) that there was robbery or series of robberies (2) That the robbery or each of them was an armed robbery (3) that the (accused person) appellant was the robber or one of those who took part in the armed robbery. See Olayinka Afolalu vs. The State (2010) 16 NWLR (pt. 1220) 584; Bojin vs. The State (1985) 2 NWLR (pt. 8) 465; Okosi vs. A. G. Bendel State (1989) 1 NWLR (pt.100) 642.
I find no difficulty in agreeing with the learned trial judge, that the above ingredients or essential elements of armed robbery are well embedded in the evidence of the PW2 who was the victim of the armed robbery, and who saw the appellant and the co-accused attacked her and took away her car at gun point which car was later found with them in Ibadan.
I am of the view that the learned trial judge had solid grounds in the evidence adduced before the court to convict the appellant of the offence of armed robbery as charged.

The law does not impose any duty on the prosecution to call an array of witnesses except where the charge requires that the evidence of a witness be corroborated. All that is required is that the allegation be proved by evidence and as such; the prosecution can secure conviction based on the evidence of a single witness. See Edamine vs. State (1996) 3 NWLR (pt. 438) 530; Oguwonzee vs. The State (1998) 5 NWLR (pt. 551) 521.
I resolve this issue against the appellant.

The learned counsel for appellant contended on the third issue that the appellant was convicted and sentenced to death upon the contradictory and unsubstantiated testimonies of PW2 and PW3 and that decision is a breach of the appellant’s right to fair hearing. According to the learned counsel, the PW2 had stated that the alleged robbery occurred on 13/10/2011 and she went to the police at A Division, Ilorin the same day with her husband and daughter to report, while the PW3 (the IPO) said that the PW2 reported the incident 5 days after on 18/10/2011 and she came with one Adegbenle Olawale a victim of another alleged robbery. It was argued that the contradiction or inconsistency in evidence of PW2 and PW3 as to the date the alleged robbery was reported is substantial and material as there was doubt as to whether there was robbery at all which doubt should have been resolved in favour of the appellant. It was submitted that the contradiction has cast doubt on the credibility of the respondent’s witnesses, citing State vs. Salawu (2011) 18 NWLR (pt. 1279) 883. The decision of the trial court has occasioned a miscarriage of justice.

On this issue the learned Attorney General contended that there was no material contradiction or discrepancy in the evidence of the PW2 and PW3. It was submitted that for contradictions or discrepancies to affect the case of the prosecution, they must be material and substantial, citing Shuromu vs. The State (2010) 16 NWLR (pt. 1218) 65. It was contended that no contradiction exists in this case to cast any doubt on the case of the prosecution; contending that State vs. Salawu (2011) 18 NWLR (pt. 1279) 883 cited by appellant’s counsel is irrelevant and not apposite.

In the Appellant’s Reply Brief, it was submitted that the contradictions in the evidence of the PW2 and PW3 struck at the root of the prosecution’s case and were sufficient to raise a doubt in the mind of the court which should be resolved in favour of the appellant and failure to do so occasioned a miscarriage of justice, citing Alani vs. State (1993) 7 NWLR (Pt. 303) 112; Bassey vs. State (2013) 12 NWLR (pt. 1314) 209; Chukwu vs. State (1996) 7 NWLR (pt. 463) 686; Abogede vs. State (1996) 5 NWLR (pt. 448) 270.
It was contended that there was contradiction as to the day or date the alleged armed robbery occurred or who actually reported to the police which contradictions were never resolved, thereby leaving a doubt as to whether there was armed robbery on 13/10/2011 or 18/10/11 or at all. The summing up of the evidence by the trial court deprived the appellant of fair hearing and occasioned a miscarriage of justice which should warrant this court setting aside the trial court’s judgment citing Sanni vs. State (1993) 4 NWLR (Pt. 285) 99.

It is noted that the contradiction or inconsistency alleged by the appellant here in the evidence of PW2 and PW3 relates to the report of the alleged armed robbery, in that while the PW2 said she reported on 13/10/2011, with her husband and daughter, the PW3 said it was on 18/10/2011 that the PW2 reported the case with Adegbenle Olawale.

It has been settled that for an alleged contradiction or inconsistency in evidence to affect the decision of the trial court, or warrant its being set aside, such contradiction or inconsistency must relate to a material ingredients of the charge before the court and must go to the substance of the case. See Onubogu vs. Queen (1974) 9 SC 1; Buba vs. State (1994) 7 NWLR (pt. 355) 195; Archibong vs. State (2006) All FWLR (Pt. 323) 174 and Agbo vs. State (2006) All FWLR (Pt. 309) 1380.
The PW2 in this case who was the victim of the alleged armed robbery said she reported at A Division of Police at Ilorin on 13/10/11 with her husband and daughter while the PW3 the IPO said he received the report of the armed robbery at the Special Anti Robbery Squad (SARS) of police at Ilorin on 18/10/2011. The evidence of these two witnesses show that there was armed robbery. I do not find this contradiction or inconsistency in the evidence of these witnesses that is substantial enough to affect the case of the prosecution and eventual decision of the trial judge.
This issue is resolved against the appellant.

On the fourth issue the appellant’s counsel contended that the trial court wrongly relied on the case of Onyenye vs. State (2012) All FWLR (pt. 643) 1810 to convict the appellant and sentence him to death by hanging. The basis for this contention is that unlike the Onyenye’s case, the witnesses in the instant case gave account of two different dates and the appellant in the instant case said he was tortured before he signed his statement unlike in Onyenye’s case where the statement of the accused was tendered without any objection.
It was then contended that the learned trial judge was wrong to have drawn inference from non existing circumstances to convict the appellant.

For the respondent it was contended that the learned trial judge rightly relied on Onyenye vs. The State (2012) All FWLR (Pt. 643) 1810 which is a decision of the Supreme Court because the decision of the learned trial judge accords with the principles set down by the Supreme Court on the offence of conspiracy after the trial judge had complied with the law by subjecting exhibit AA2, the appellant’s statement to a trial within trial before admitting the statement in evidence. It was submitted that an appellate court will not interfere with the finding of the trial court on the basis of minor inconsistency in evidence of witnesses, citing Ashinyu vs. The State (1982) 10 SC 13.

While deciding the offence of conspiracy in his judgment in the instant case, the learned trial judge held inter alia at page 102 of the record of proceedings that “Besides, Exhibits AA1 and AA2, shows clearly that the two accused persons along with Olaniyi and Taiye alias Marshall jointly conspired to rob PW2 on the 13th of October, 2011. Infact conspiracy can be established by way of inference, as the two of them were as the scene of crime. See Onyenye v. The State (2012) All FWLR (pt. 643) 1810 at 1832 – 1833.”

The case of Onyenye vs. State is also reported in (2012) Vol. 5 – 7 MJSC (pt. II) 121. It is a case in which the appellant was charged before the Oyo State High Court with other persons for the offences of conspiracy and armed robbery as in the instant case. At page 162 of the report the Supreme Court restated the age long principle that conspiracy can be inferred from the acts of the accused where there is no direct evidence of an agreement between the accused persons. The apex court said;

“In effect conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The courts tackle the offence of conspiracy as a matter of inference to be deducted from certain criminal acts or inactions of the parties concerned. Oduneye v. The State (2011) 13 NWLR 88; Obiakor v. The State (2002) 10 NWLR (pt. 776) pg. 612; Daboh v. The State (1977) 5 SC 197; Ubierho v. The State (2005) 1 NWLR (Pt. 919) pg. 644; Muonwem v. Queen (1969) 2 SC NLR pg. 172.”

By the doctrine of judicial precedent and the legal rule of stare decisis based thereon, the above decision of the Supreme Court in Onyenye’s case is unreservedly binding on the trial court in this case. In Abacha vs. Fawehinmi (2000) LPELR – 14 SC, the Supreme Court stated that “By the time honoured doctrine of precedent as it operates in Nigeria and common law countries, the decision on a given issue of law handed down by the apex court which for us in Nigeria is the Supreme Court, is not only superior but binds subordinate courts, including all courts exercising appellate jurisdiction. It is the law that a decision of a court of competent jurisdiction no matter that it seems palpably null and void, unattractive or insupportable, remains good law and uncompromisingly binding until set aside by a superior court of competent jurisdiction – see Babatunde & Anor vs. Olatunji & Anor (2000) 2 NWLR (pt. 646) 557 and Ezeokafor vs. Ezelo (1999) 9 NWLR (pt. 619) 369 (1999) 6SC (Pt. 11) 1.”
The learned trial judge was on firm ground when he relied on the Supreme Court decision in Onyenye’s case on the guiding and applicable principle of law on conspiracy, and I so hold.
This issue is also resolved against the appellant.

The contention of the appellant on the fifth issue is that out of the three people that were victims of the alleged armed robbery, only the PW2 identified the appellant while the wrong mode was used. It was submitted that because the period during which the PW2 was confronted by the appellant was short an identification parade would have been conducted by the police, citing Archibong vs. State (2004) 1 NWLR (pt. 855) 488. It was contended that the failure of the police to call PW3’s daughter and Adegbenle Olawale to also identify the appellant and absence of identification parade created a vacuum in the identification of the appellant. The cases of Ohi v. State (1999) 4 NWLR (pt. 290) 675; Adamu vs. State (1991) 4 NWLR (pt. 187) 530 and Balogun vs. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512 were cited.
On the significance of identification in trial of an accused person the case of Ani vs. The State (2009) 16 NWLR (pt. 1168) 443 was cited.
It was argued that there was no proper identification of the appellant in the course of investigation.

The learned Attorney General for the respondent argued that the peculiar circumstances of this case does not call for any formal identification parade. According to him, counts 3 and 4 that involved the appellant were sufficiently established by the prosecution. It was submitted that the prosecution is not bound to call all the witnesses listed in proof of evidence or that were present at the scene, citing Iziren vs. The State (1993) 9 NWLR (Pt. 420) 385.

In the Appellant’s Reply Brief, it was submitted that in the instant case’ a formal identification parade should have been conducted when the appellant was not apprehended during commission of the crime or at the scene citing Martins vs. State (1997) 1 NWLR (pt. 481) 355; Ikemson vs. State (1989) 3 NWLR (Pt. 110) 462.

On identification of an accused person, the Supreme Court, per Belgore JSC (as he then was) stated in the case of Adamu vs. State (1991) LPELR- 73 (SC) that “The entire circumstance of a case determines the type of identification necessary. In some cases where there is more of suspicious rather than some concrete evidence against the accused person an identification parade may be necessary whereby the accused person is lined up among other person or even suspects and the victim or witness is asked to identify the culprit. But such method is not necessary if the victim of the crime or a witness thereof promptly identifies the criminal without prodding as has happened in this case.” Again, in Adeyemi vs. State (1991) LPELR – 188 SC, Olatawura JSC of blessed memory sated thus on identification of accused;
“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. When a witness who gives evidence of visual identification was not cross-examined nor shaken under cross – examination, nothing stops the judge from accepting his evidence.”

In the instant case, the appellant and another person, were arraigned on a charge of four counts bothering on conspiracy and armed robbery incidences involving two victims, Adegbenle Olawale and Mrs. Bunmi Afolayan at two different scenes i.e. Ojomo Estate Offa Garage Ilorin, and Pipeline Road, Ilorin respectively on 13/10/2011. While no evidence was adduced by the prosecution in respect of the 1st and 2nd counts that deal with the armed robbery of Adegbenle Olawale and they are deemed abandoned, three witnesses were called by the prosecution in respect of counts 3 and 4 about the armed robbery of Mrs. Bunmi Afolayan, who as the victim of the crime testified as the PW2.
The relevant evidence of this PW2 in respect of the identity or identification of the appellant on page 60 of the record is that;

“…Suddenly somebody by my side ordered we to come down. He said I should show him the security of the car. I told him there was no security, he then brought the gun pointing it at me threaten (sic) to shoot me if I insisted there was no security on the car, he said I should come out. I came out of the car, the 2nd accused person pull my ears to remove my earring. I help him to remove it he cut my necklace and collected my wristwatch and the wedding ring. They then ordered my daughter to lie on the floor they collected her earring and the hand bag. It was the 1st accused person that collected her bag and earring of my daughter.”

At page 61 under cross examination, the PW2 said, “the 1st accused first ask of the security of the car when I answered there was none he told me to come down. The Engine of the car was running… when we got to the police station, we met the accused lying on the floor. There were many people…”

The further evidence in this case as given by the PW3, the IPO is that on 14/10/2011 the following day of the incident police received signal that the PW2’s Toyota Car was intercepted in Ibadan, by police where the vehicle with these two accused persons found there in were handed over to him.
I quite agree with the learned Attorney General that there is no evidence on record here that the encounter between the PW2 and the appellant was too short for her to recongnise and identify the appellant.
The facts and circumstances of this case show that the appellant, who was not caught at the scene was caught in possession of the PW2’s car not long after the robbery of the car and apart from the recognition at the scene, the PW2 was able to recognize and identify the appellant in the midst of other suspects at the police station in Ibadan. The testimony of the PW2 on the recognition and identification of the appellant was not shaken during cross-examination.
I am of the view that from the facts and circumstances of this case, the appellant was sufficiently identified by the victim of the offence which is the best form of identification.
I resolve this issue against the appellant.

On the sixth issue, the learned counsel for the appellant contended that the learned trial judge wrongly admitted the appellants’ extra-judicial statement in evidence and wrongly relied thereon to convict the appellant and sentence him to death. It was contended that the statement admitted as exhibit AA2 was not voluntarily made. The trial court, as argued by counsel did not consider all the evidence at the trial within trial before admitting Exhibit AA2 in evidence and failed to critically examine all the evidence before the court, citing Saidu vs. Abubakar (2008) 12 NWLR (pt. 1100) 201.
It was contended that the appellant was not given full opportunity to be heard by the trial court as was given to the respondent and the decision arrived at is a nully, citing Edet vs. State (2008) 14 NWLR (pt. 1106) 52.
It was submitted that the learned trial judge wrongly answered the questions raised in Kabiru vs. A. G. Ogun State (2009) 5 NWLR (Pt. 1134) 209 on the tests for determining the veracity of a confessional statement, as exhibit AA2 cannot pass the tests for reliance on a confessional statement.

The learned Attorney General in the respondent’s Brief contended on this issue that exhibit AA2 was admitted after a trial within trial whereat the appellant had claimed that he was beaten and shot in the leg and beaten by the officers that arrested him at Ibadan before he was transferred to Ilorin but the learned trial judge considered this evidence and found that there was no sign of any gun shot on the appellant to warrant the rejection of the statement, the finding of the learned trial judge on this issue of lack of gunshot injury on the appellant is one of fact which an appellate court will not tamper with except where it is shown to have been based on wrong evaluation of the facts. It was submitted that an appellate court is not in a position to contradict the findings fact of a trial court based on available evidence because the appellate court does not have the opportunity of observing the demeanour of the witnesses. Woluchem vs. Gudi (1981) 5 SC; Okuoja vs. Ishola (1980) 7 SC 314. It was submitted that exhibit AA2 has satisfied the conditions stated in Emmanuel Nwaebonyi vs. The State (1994) 5 NWLR (Pt. 343) 138.

It was contended by the appellant in the Reply Brief that exhibit AA2 has not satisfied the test enumerated in Emmanuel Nwaebonyi vs. The State (supra) because no evidence exists outside the exhibit to show that it is true.
In the course of the evidence of the PW3 at page 63 of the record, the prosecution sought to tender the statements made by the appellant but the learned defence counsel objected to its admissibility on ground of its involuntariness. The learned trial judge then conducted a trial within trial at which two witnesses testified for the prosecution while the appellant testified as the DW2. In its considered ruling on pages 73 – 76 of the record, the trial court found that the statement of the appellant was voluntary confession and admitted same as exhibit AA2 after the learned trial judge had evaluated the evidence of these witnesses.

It has been held that a decision reached by a trial court or tribunal in a trial within trial proceeding to determine whether a confessional statement is voluntary or not after the evaluation of evidence that decision is based on the credibility of the witnesses that testified at the trial and not based on documentary evidence that an appellate court can re evaluate.
See Abiodun vs. State (2013) Vol. 3 – 4 M.J.S.C. (pt. 1) 163.
It is my humble view that the learned trial judge had followed the correct procedure by conducting a trial within trial and had properly evaluated the evidence of the witnesses at the trial before arriving at the decision to admit exhibit AA2. It has thus become undesirable to embark on another evaluation of the same evidence moreso that it invariably involves the credibility of the witnesses.
The learned trial judge found that the confessional statement of the appellant was free and voluntary and that it was a positive admission of guilt. It is therefore safe for the court to convict on it. See Aremu vs. State (1984) 6 SC 85; Ejinima vs. State (1991) 6 NWLR (Pt. 200) 62. Effiong vs. State (1998) 8 NWLR (Pt. 562) 362; Alarape vs. The State (2001) 14 WRN 1.

It is clear to me that the evidence of the PW2 sufficiently provides the evidence outside the appellant’s confession in exhibit AA2 to warrant the conviction by the learned judge.
I resolve this issue against the appellant.

On the seventh issue, the appellant contended that the respondent failed to prove its case beyond reasonable doubt as it was not proved that the appellant was involved in the offences charged. It was submitted that the standard of proof in criminal cases is beyond reasonable doubt because by virtue of section 36(5) of the constitution of the Federal Republic of Nigeria 1999 (as amended), an accused person is presumed innocent until his guilt is established; Shande vs. State (2005) 1 NWLR (Pt. 907) 218.
It was contended that the appellant raised a defence of alibi timeously but the police failed to investigate the alibi. It was submitted that once an accused person sets up a defence of alibi the prosecution has a burden of disproving such alibi and to proof the case beyond reasonable doubt, citing Amodu vs. The State (2010) 2 NWLR (pt. 1177) 47; Ani vs. The State (2009) 16 NWLR (pt. 1168) 443.

The learned Attorney General submitted on this issue that the prosecution established its case beyond reasonable doubt; and contended that the trial court properly evaluated the evidence before it, so the appellate court should not interfere with the decision of that court.
On the matter of alibi argued by the learned counsel for the appellant under this issue, the learned Attorney General submitted that alibi cannot be canvased under Ground 7 of this appeal which is the omnibus ground, such an issue which was the defence of the appellant at the trial ought to be specifically made a ground of appeal as it is not arguable under the omnibus ground, citing Nwano vs. Obaze (2012) All FWLR (Pt. 605) 231.
We were urged to discountenance the issue of alibi raised under Ground 7 of the appeal.

In the alternative, it was contended that the appellant failed to timeously raise the defence of alibi in his statement to the police or at the point of arrest, so the alibi must fail, citing Udobre vs. The State (2011) FWLR (Pt. 59) 1244. It was submitted also that the appellant failed to submit the material particulars of his defence of alibi and failure to discharge the evidential burden placed on him as highlighted in Peter Nwachukwu Eze vs. The State (1976) 1 SC 125.

In the Appellant’s Reply Brief, the Appellant’s counsel contended that the issue of alibi was properly raised under the omnibus ground of appeal. It was the contention of the appellant that the defence of alibi was timously raised and the cases of Udobre vs. The State (supra) and Eze vs. The State (Supra) cited and relied upon by the respondent do not assist the respondents’ position as the appellant sufficiently disclosed the particulars of his alibi.
This seventh issue is distilled from ground 7 of the grounds of appeal which the appellant has couched thus;
“The judgment is against the weight of evidence.”
It must be stated that “weight of evidence” is applicable in civil proceedings where the standard of proof is on the balance of probability or preponderance of evidence which the court arrives at after weighing the evidence in line with the decision in the case of Mogaji vs. Odofin (1978) 4 SC 91. In criminal cases, it is made abundantly clear by section 135 (1) of Evidence Act 2011 that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. This section with the provision for presumption of innocence under section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) place the burden on the person alleging a crime (usually the prosecutor) to prove all the ingredients of the alleged offence, and in such cases, there is usually no recourse to weight of evidence.
The proper way to couch the omnibus ground of appeal in a criminal case is that the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence adduced, Isiekwe vs. State (1999) 9 NWLR (pt. 617) 43; Ekeru vs. Anuku (2011) All FWLR (Pt. 561) 1560.
It is the law that an omnibus ground is a complaint against the whole evidence adduced and as such cannot be used to raise an issue of law or error of law. This was explicitly stated by the Supreme Court in Akinlagun vs. Oshoboja (2006) All FWLR (Pt. 325) 53 at 75 – 26 thus: “An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial court. It is not against a specific finding of fact or any document. It cannot be used to raised any issue of law or error in Law. See Ajibona vs. Kolawole (1996) 10 NWLR (pt. 476) 22.” See also Nkokidu vs. Okanu (2010) 3 NWLR (pt. 1181) 362.

I therefore agree with the learned Attorney General that the issue of alibi argued by the appellant’s counsel under this issue is incompetent. However since both counsel have argued this point in their briefs and considering the nature of the case that led to this appeal. I intend to consider the whole of this issue number 7.
The substratum of this issue is that the respondent failed to prove the case beyond reasonable doubt as required by law which is a question of evaluation of evidence.

It has become well settled through the numerous decision of court that the duty to evaluate evidence is essentially that of the trial judge, and where that court has unquestionably evaluated the evidence in the case and has justifiably appraised the facts the appellate court has no business embarking on a fresh evaluation of the same evidence. See Igago vs. State (1999) 10 – 12 SC 84; Sugu vs. The State (1988) LPELR 3121 (SC); Udofia vs. The State (1984) LPELR – 3306 (SC); Abeke vs. State (2007) 9 NWLR (Pt. 1040) 411.

The appellant’s counsel has argued that though the appellant raised an alibi timeously, the police failed to investigate same. He referred to pages 81 and 82 of the record of appeal which contain the evidence in chief and cross examination of the appellant as the DW2 at the trial after completion of the prosecution’s case.
It is observed, and the learned counsel for appellant also probably so observed, that the appellant did not raise any alibi in his statement to police which was admitted as exhibit AA2, so as to give the police the benefit of investigating such alibi.
An accused person who raises an alibi as a defence is simply saying he was somewhere other than the scene of crime at the time of commission.
Where therefore there is evidence on record fixing the accused to the scene and commission of the offence, the defence of alibi is destroyed. See Attah vs. State (2010) Vol. 3 (Pt. iv) MJSC 139; Njovens v. The State (1973) 5 SC 17; Afolalu vs. State (2010) All FWLR (Pt. 538) 812.
The evidence of the PW2 who was the victim of the armed robbery had effectively fixed the appellant with the commission of the offence and his alibi was rightly rejected by the trial court.

I am of the view that the learned trial judge has properly evaluated the evidence in this case and has made the correct findings thereby rendering it undesirable that a fresh exercise of evaluation of the same evidence be embarked upon by this court.
This issue is resolved against the appellant.
From the foregoing resolution of all the issues in this appeal, it is proper to hold that the appeal lacks substance and merit and I so hold. It is dismissed accordingly.
The conviction and sentence of the appellant as contained in the judgment of the trial High Court of Kwara State delivered on 18/7/2013 are affirmed.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the judgment of my learned brother Isaiah Olufemi Akeju, JCA just rendered in this appeal and I entirely go along with him that the appeal is unmeritorious and should be dismissed. I adopt the reasons and conclusion in the lead judgment as mine and accordingly dismiss the appeal and affirm the judgment of the lower court delivered on 18th July 2013.

UCHECHUKWU ONYEMENAM, J.C.A.: In determining whether the ingredients of an offence has been established to warrant the conviction of an accused by a Court, the Court must carefully consider and ascertain that the acts of the accused falls within the confines of the offence charged. See: The State v. Salawu.

The prosecution in the proof of the guilt of the accused must by his evidence establish with high credibility to the conviction of the court without reasonable doubt that the accused committed the offence.
Where the evidence adduced by the prosecution merely creates or establishes a suspicion in the mind of the Court that the accused could be guilty as charged, the Court cannot convict the accused no matter how reasonable and convincing the suspicion might be. See: Alor v. State (1997) 4 NWLR (PT. 501) 511.

Let me also note hastily, that the evidence of a single witness which is credible and is believed by the Court can ground a conviction of an accused person except in circumstances where the law requires corroboration. This follows the reasoning that it is the probative value of the evidence which meets the standard of a proof beyond reasonable doubt that matters and not the quantity of evidence.

In the instance appeal, I have gone through the ‘proof of evidence’ of Mrs Bunmi Afolayan (PW2) at page of the record; her evidence on oath at page 60 of the record. It is my view that her evidence did not in one inch fall short of the proof of the three ingredients of the offence of armed robbery. Her evidence therein is succinct, cogent, convincing and compelling on all the ingredients of armed robbery. The learned trial Judge was right in believing her evidence which to my mind would rightly ground the conviction of the Appellant even when there is no further prosecution evidence in addition. It is my opinion therefore that the learned trial Judge was right when he held that the prosecution proved the offence of armed robbery against the Appellant.

On the contention of the Appellant that the evidence of PW2 and PW3 stating different dates as the day the PW2 made a report of the armed robbery incidence to the Police, the learned Counsel to the Respondent argued that such contradiction did not in any way affect the case of the prosecution.
Firmly, it is only any contradiction of the evidence of witnesses which go to the root of the ingredients of the offence charged that can vitiate the case of the prosecution and upturn a conviction of an accused. Minor and inconsequential contradictions as against an overwhelming evidence of the prosecution before the Court cannot be the basis for this Court to set aside a conviction of an accused. See: Jerry Ikupennikan V. State (2011) 1 NWLR (PT.1229) 449 at 454; Agbo v. The State (2000) 1 S.C. (pt. 4) 73.
In dealing with contradictions and discrepancies of evidence of the prosecution, it must be bourne in mind that the human faculty is not a Computer. In recollection, the memory of a witness might fail him. His human faculty may miss some minor details by reason of lapse of time or accuracy in narration. It is also very possible that there may be a mix up of dates when the issue of date is not an essential ingredient. When such happens, so long as the Court believes the evidence of the prosecution, such contradictions which do not touch on material substance of the case cannot discredit the evidence of the prosecution.
It is correct that the evidence of PW2 and PW3 on the date the armed robbery incident was reported to the police is contradictory; the said contradiction did not touch on the root of the ingredients of the offence of armed robbery. The evidence of the PW2 and PW3 as to the date the armed robbery was reported cannot therefore discredit the prosecution’s evidence to warrant this court to upturn the conviction of the Appellant. See: Jerry Ikupennikan V. The State (2011) 1 NWLR (Pt. 1229) 449 at 454.
The learned trial Judge was therefore right when he did not consider the said contradiction material enough to affect the evidence of the prosecution in the proof of the guilt of the accused.

For all I have said and the reasons set out in the lead judgment, I am in agreement with the conclusion of my learned brother ISAIAH OLUFEMI AKEJU, JCA that the appeal has no merit. It is hereby dismissed.
I affirm the conviction and sentence of the Appellant in the judgment of the High Court of Kwara State, sitting at Ilorin in Suit No. KWS/13c/12 delivered on 18th July, 2013.

Appearances

Sheni Ibiwoye Esq. with Taiye Oniyide Esq.For Appellant

AND

Kamaldeen Ajibade Esq., A. G. Kwara State with him O. S. Balogun (SSC)For Respondent