HARUNA TIMOTHY v. PEOPLE OF LAGOS STATE (2015)

HARUNA TIMOTHY v. PEOPLE OF LAGOS STATE

(2015)LCN/7892(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of June, 2015

CA/L/916/2014

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHAT IS THE DEFENCE OF ALIBI

Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. Sowemimo vs. State (2004) 11 NWLR Pt.885 pg.515. per. UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHETHER THE ONUS IS ON THE PROSECUTION TO PROVE THE ALIBI OF THE ACCUSED AND THE DUTY OF THE PROSECUTION TO INVESTIGATE THE DEFENCE OF ALIBI

An accused person is not required to prove his Alibi, rather, the Onus is on the prosecution to disprove the Alibi. Consequently once there is the slightest defence of Alibi; the plea ought to be investigated. Failure of the prosecution, therefore, to investigate the Alibi raised is fatal to the prosecution’s case Sowemimo vs. The State (supra), Aiguoreghian vs. State (2004) 11 NWLR pt.860 pg.367, Nsofor vs. State (supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL PROCEDURE: IDENTIFICATION PARADE; INSTANCES WHERE AN IDENTIFICATION PARADE IS ESSENTIAL AND THE ESSENCE OF AN IDENTIFICATION PARADE

Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
b. where the victim or witness was confronted by the offender for a very short time; and
c. where the victim due to time and circumstance, might have had full opportunity of observing the features of the accused. See Ukpabi vs. State (2004) 11 NWLR pt.884 pg.439, Ebri vs. State (2004) 11 NWLR pt.885 pg.589. Identification evidence is generally to show that the person charged with an offence is the same person who committed the offence. Where the trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Ukpabi vs. State (supra); Archibong vs. State (supra). per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: INCONSISTENCIES IN EVIDENCE; WHETHER EVERY INCONSISTENCIES IN THE EVIDENCE IS FATAL TO THE CASE

The Courts have held that 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 while also creating some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. See Theophilus vs. The State (1996) 1 NWLR Pt.423 pg.139, Chukwu vs. State (1996) 7 NWLR pt.463 pg.686. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

HARUNA TIMOTHY Appellant(s)

AND

PEOPLE OF LAGOS STATE Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State by Hon. Justice O.A. William delivered on 17th day of April, 2014. The Appellant was charged on a one count charge of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. The Appellant pleaded “not guilty”. The State, in proof of its case, called four witnesses and tendered seven exhibits. In defence of the charge, the Appellant also called four witnesses (himself inclusive) and tendered two exhibits. At the end of the trial, the learned trial judge delivered its considered judgment, convicted and sentenced the Appellant to death for the offence of Armed Robbery.

Being dissatisfied, the Appellant filed a Notice of Appeal with seven (7) grounds. The Appellant also filed his Appellant’s brief on 21st day of November, 2014. In it, the Appellant articulated three (3) issues for determination. They are as follows:-
1. Having regard to the fact that the Appellant’s defence of alibi was not investigated by the Respondent and the Lower Court’s finding that the Appellant was not arrested at the scene of crime, whether the Lower Court was right to have convicted the Appellant of the crime of Armed Robbery – Grounds 1 and 2.
2. Given the fact that Nigeria’s Criminal Justice System is accusatorial and the finding of the Lower Court to the effect that the Appellant (as the accused) has the burden of adducing evidence to prove his alibi, whether the Lower Court was not wrong in finding the Appellant guilty and convicting him of the crime of Armed Robbery – Ground 3.
3. Considering the position of the law on the failure to conduct an identification parade where same is necessary in a criminal trial; the fact that the Respondent did not conduct an identification parade during the investigation of the crime of Armed Robbery for which the Appellant was convicted and wrongful reliance by the Lower Court on evidence not properly before it, whether the Lower Court was not wrong in holding that the charge was proved. – Ground 4, 6 and 7.

In response, the Respondent filed its brief on 19th day of March, 2015 and deemed filed on 29th day of April, 2015. In it, the Respondent articulated four issues for determination. They are as follows:-
i. Whether in the circumstances of this case the Honourable court was right to hold that the Respondent has discharged the onus of proof placed on it by law with regards to the offence of Armed Robbery for which the Appellant was convicted.
ii. Whether the Lower Court adequately addressed the issue of alibi raised by the Appellant. (Distilled from
2, 3 and 4).
iii. Whether the conviction of the Appellant based on his identification by the Respondent’s witnesses at the Lower Court was proper in law and whether the identification parade conducted in this case was adequate. (Distilled from ground).
iv. Whether the reliance placed on Exhibit P5 by the Lower Court has any effect on the conviction of the Appellant. (Distilled from ground 6).

The Appellant’s reply brief was filed on 7th day of April, 2015 and deemed properly filed and served on 30th day of April, 2015.

In his submission, counsel for the Appellant submitted that the trial judge wrongly disregarded the defence of alibi on the ground that sufficient particulars were not given by the Appellant to the police at the earliest possible time to enable the police investigate it. He contended that the Appellant had, in his written statement, raised alibi and had also furnished the police with sufficient particulars. He made reference to lines 24-29 of page 17 and lines 1, 18, 19 and 20 of page 18 of the Record hereunder reproduced:
“…that very day I was in the office with BABO in charge of account his name is Sub/LT Aiyeoyeniko. They went with the staff car saloon at about 6. O’clock in the evening the men did not come back with the staff car, the car was later discovered at Mazamaza along the express. It was the drive [sic) O/S AYO whom the officer on duty call (sic) in the morning before he told him where the car was abandon.”

He further contended that even if it is found that the particulars given at the stage of investigation were not sufficient to support the defence of alibi, he had furnished sufficient particulars at the trial and at that stage the prosecution should have sought for an adjournment to investigate the Alibi. He relied on the case of Onyebu vs. State (1994) 1 NWLR (Pt 320) 328 at 344 where Edozie JCA held as follows:
“Where the accused person puts forward the defence of alibi during trial, the prosecution can seek for adjournment to enable the Police investigate the defence.”

He also contended that the decision of the Court to investigate the alibi and rejecting same, the trial Court has descended into the arena of conflict and has exceeded his jurisdiction. He relied on the case of Shagari vs. Commissioner of Police (2005) ALL FWLR (Pt 262) 450 @ 470.

He further contended that the Learned trial judge based its decision to reject the alibi on the evidence of PW2 that the Appellant’s mobile phone number called the mobile phone number given to the complainant by the alleged armed robbers. He contended that there is no evidence to support this fact before the Lower Court and the Lower Court has no power to act on such evidence. In conclusion, he submitted that the failure of the prosecution to investigate the defence of alibi raised by the Appellant amounted to an admission of the said alibi by the prosecution and as such, the Lower Court ought to have discharged and acquitted the Appellant on that ground. He thus urged the Court to resolve this issue in favour of the Appellant.

ISSUE 2
Learned counsel for the Appellant submitted that the trial court misdirected itself when it held as follows:
“The defendant has the burden of adducing credible evidence to support of his claim that he was elsewhere.”

He contended that this is contrary to the position of the law in Nigeria. The Nigeria Criminal Justice System is accusatorial and places the burden of proof on the prosecution and not the defence. As regards the case of alibi, the only burden the defendant has is to state where he was at the time of the crime. The prosecution still retains the burden of disproving his alibi. He relied on Ozaki vs. State (1990) NWLR (Pt 124) 92 @ 109; Balogun vs. AG Ogun State (No. 2) (2002) 6 NWLR (Pt.763) 512 @ 536; Agbayi vs. State (1995) 1 NWLR (Pt.369) 1 @ 19. He thus submitted that the trial court is guilty of misdirection hence the judgment premised on such misdirection is likely to be set aside. He, therefore, urged the court to resolve this issue in favour of the Appellant.

ISSUE 3
Counsel for the Appellant submitted that it is trite that in any trial for armed robbery, where the accused was not arrested at the scene of the crime and raises the defence of alibi, an identification parade is mandatory for the prosecution to succeed and/or secure a conviction. He refers to the case of Adisa vs. State (1991) 1 NWLR (Pt.168) 490 @ 506-507. The fact of this case brings the case within the requirement for identification parade itemized in the case of Okeke vs. State (1995) 4 NWLR (pt 392) 679 @ 708. However, none was conducted. He submits that conviction of the Appellant by the trial court without the conduct of identification parade is a grave error on the part of the trial judge and rendered the conviction liable to be set aside.

He further contended that even if an identification parade was conducted, what was conducted did not satisfy the requirement of the law regarding such parade. He submitted that the identification parade is required by law to be conducted by the police and no other agency. Also he contended that the attempt to rely on the purported identification parade by the Naval officers cannot satisfy the requirement of the law because the parade was conducted by the naval officers prior to court martial and for the purpose of court martial which cannot be relied on for the purpose of trial in this case.

He also argues that even if the parade conducted by the naval officers can be used for the determination of this case, the parade was not conducted according to the procedure laid down by law. It is his contention that for an identification parade to be proper, the victim must have given description of the assailant and it is with that description that the police will use to select those to be used for identification parade. He relied on Ojukwu vs. State (2002) 4 NWLR (Pt.756) 80 @ 91; Chukwueke vs. State (1991) 7 NWLR (Pt.205) 604.

Counsel further contended that the Lower Court had no jurisdiction to rely on Exhibit P5 (Appellant’s confessional statement) after rightly rejecting same. Also counsel contends that the investigation was inconclusive on the grounds that no naval officer testified on behalf of the prosecution on the issue of booking of any rifle or ammunitions and also no rifle was tendered by the Respondent despite the police indication of this in the investigation report. He, therefore, submitted that the Lower Court had no jurisdiction since the trial was predicated on an inconclusive investigation. He thus urged this court to resolve this issue in favour of the Appellant.

ISSUE 1 (RESPONDENT)
Learned counsel for the Respondent submitted that in a criminal trial, the prosecution has the onus of proving its case beyond reasonable doubt not beyond all shadow of doubt. The charge against the Appellant is one of Armed Robbery. The ingredients of the offence of Armed Robbery are stated as follows in the case of Bolanle vs. The State (2005) 7 NWLR (Pt 925) 431 CA:
1. There must be a Robbery or series of Robberies;
2. The Robbery must be with arms;
3. The accused person must be one of those who took part in the Armed Robbery.

Counsel submitted that based on the evidence led by the Respondent’s witness [PW1-PW4), the above stated ingredients have been established and which evidence was unchallenged at the Lower Court. Thus the court was obliged to act on such unchallenged evidence. He relied on the case of Igbi vs. State (1998) 11 NWLR (Pt 574).

ISSUE 2
The failure of the police to investigate the alibi was based on the fact that the Appellant did not provide material particulars to enable the police investigate. Also the Appellant escaped the very next day after he was initially arrested. After he had been re-arrested, the Appellant made a confessional statement [Exhibit P5). Counsel, therefore, submitted that under such circumstances there was nothing to investigate by the police in respect of alibi. He relied on Afolalu vs. The State (2010) 16 NWLR (Pt.1220) 584 S.C.

He further contended that where the prosecution is able to lead cogent evidence, which showed that the accused was at the scene of a crime at the material time when the offence was committed, the defence of alibi will fail. He relied on the case of Balogun vs. AG Ogun State (supra); Attah & Ors vs. The State (2009) 15 NWLR (Pt 1164) 284. Counsel in this case relied on the credible eye witness account of PW1-PW4 placing the Appellant at the scene of the crime. In the circumstance, the defence of alibi cannot avail the accused/Appellant.

In his reply brief, learned counsel for the Appellant submitted that where an issue for determination is in conflict with the ground(s) upon which the said issue is predicated, the issue and the argument canvassed thereupon are liable to be struck out. He relies on the case of Ademuyiwa vs. Olokunbola (2009) 11 NWLR (Pt.1153) 539. He contended that the Respondent’s issue 2 did not arise from any of the grounds of appeal and also it is in conflict with grounds 2, 3, and 4 of the Notice of Appeal. He thus urged this court to resolve this issue 2 against the Respondent.

ISSUE 3
Counsel submitted that identification parade is only relevant when the identity of the accused person is in dispute. He relies on Otti vs. State (1993) 4 NWLR (Pt.290) 675; Fatai vs. State (2013) LPELR-20182(SC); Omopupa vs. State (2007) LPELR-8571 (CA).

Counsel contended that the identity of the Appellant was never an issue at the Lower Court. He also contends that the identity of the Appellant nor the procedure of identification parade was never challenged during trial nor was the evidence of the Respondent’s witnesses with respect to same ever contradicted. He further contended that when the accused was initially arrested, he escaped the following day without being seen by any of the complainants and upon his re-arrests an identification parade was conducted by the Navy and that parade was validly conducted. He submitted that the evidence of the Appellant as DW2 in respect of his identification and procedure for the identification parade was not corroborated. Counsel also submitted that even if the identification parade was not properly conducted there is other material evidence linking the Appellant to the crime upon which he could properly be convicted. Counsel contends that there is no law requiring identification parade to be conducted only by the police or within police premises. He thus urged this court to discountenance the submission of the Appellant as regards non-identification of the Appellant and the alleged improper conduct of an identification parade and uphold the testimony of the Respondent’s witnesses regarding the identity of the Appellant and identification parade conducted as unassailable in this case.

In his reply brief, Counsel for the Appellant urged the court to discountenance the arguments predicated on this issue by the Respondent because issue 2 and issue 3 of the Respondent brief are derived from the same ground of appeal (Ground 4 of the Notice of Appeal). He relies on the following cases UBA Plc vs. Abdullahi (2003) FWLR (Pt.182) 1941, Khalil vs. Yar’adua (2004) All FWLR (Pt.225) 111; African Petroleum vs. Owodunni (2004) ALL FWLR (Pt 208) 771.

ISSUE 4
Counsel submits that even if the content of Exhibit P5 were non-existent, there is still ample facts and evidence before the Lower Court on which the trial judge can rely upon to convict the Appellant. He thus urged this Court to so hold.

I will adopt the issues raised by the Appellant in the determination of this Appeal. Appellant’s Issue 1 and 2 on Alibi will be treated together as Issue 1 and the issues on identification will be treated as Issue 2.

The Appellant was charged on a one count charge of Armed Robbery. The offence of Robbery with Firearms is committed when, at the time of the commission of the Robbery, the accused is proved to be armed with Firearms as an offensive weapon. See Michael vs. State (2002) 1 NWLR Pt.749 pg.500.

To secure a conviction for Armed Robbery, the prosecution must prove the following:-
a. that there was an Armed Robbery;
b. that the accused was armed; and
c. that the accused, while with arm or arms participated in the Robbery.
Once the prosecution proved the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused persons because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability or responsibility Olayinka vs. State (2007) 9 NWLR Pt.1040 pg. 561; Okosi vs. Attorney General, Bendel State (1989) 1 NWLR pt.100 pg.642; Martins vs. State (1997) 1 NWLR Pt.481 pg.355.

The Appellant, as accused in the Lower Court, raised a defence of Alibi during his trial. The court in such circumstances is under a duty to consider any defence open to an accused or raised by an accused before conviction on a particular charge, see Ifejirika vs. State (1999) 3 NWLR Pt.593 pg. 59, Lado vs. State (1999) 9 NWLR pt.619 pg.369, Ihaebeka vs. The State (2000) 4 SC pt.1 pg.203, Oforlete vs. The State (2000) 7 SC pt.1 pg.80, Arabi vs. The State (2001) 12 NWLR pg.158.

In raising the defence of Alibi, the accused must, at the earliest opportunity, furnish the Police with full details of the Alibi, to enable the Police to check the details. Failure of the accused to furnish particulars of the Alibi, weakens the defence. See Sowemimo vs. State (supra).

The Appellant in this appeal made two (2) statements to the police, Exhibit P4 and Exhibit P5.

Exhibit P4 was written by the appellant himself, therein he said he was at home. This was his first statement made after he was arrested for the first time. He escaped from the Police the very next day. When he was re-arrested about Six (6) weeks later, he made the 2nd statement Exhibit P5 therein; he made a confessional statement which he rescinded during trial.

It was only in P4 that the Appellant stated that he was at home at the time of the robbery. The Appellant did not give sufficient particulars for the Police to investigate the Alibi before he escaped from custody. It is not enough for an accused to raise the defence of Alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the Alibi, see Nsofor vs. State (2002) 10 NWLR pt.775 pg. 274, Balogun vs. Attorney General Ogun State (2002) 6 NWLR pt.763 pg.512.

The prosecution in this Appeal pinned the Appellant to the scene of crime. The prosecution led evidence to show that the Appellant and his two (2) colleagues now at large, confronted PW1, PW2 and PW3 twice as they were towing their vehicle to their destination. In those two incidents, they spent several minutes with the PWs. The PWs were able to identify him positively at an identity parade conducted by the Nigeria Navy.

The Appellant and his colleagues gave one of the PWs his phone number which the Police used to hunt down the Appellant. The Appellant was lured to Mr. Biggs in Alakija by a female Police officer where he was arrested.

The prosecution also led evidence, that the PWs positively identified the Nigeria Navy vehicle that was used by the Appellant and his two accomplices in the Armed Robbery. The two accomplices who were also in the Nigeria Navy are now still at large. They quickly left the Nigeria Navy when it was obvious that the Police and the Nigeria Navy were closing in on them. Furthermore, the PWs identified the two other accomplices with their passport photographs.

The Appellant did not file adequate particulars of his Alibi even though DW1 and DW4 claimed they were with him. However, DW1 said he was not with him throughout the whole day of the robbery. The Appellant was required by law to raise his defence of Alibi at the earliest opportunity, so that it may be investigated. In Iheonunekwu Ndukwe vs. The State (2009) 2-3 SC pg. 7; (2009) 7 NWLR pt.1139 pg. 43, the Supreme Court per Mohammed stated as follows:
“It is not enough for the accused person to say to the court, that he was not at a particular place away from the scene of the crime. That he has to prove his assertion. That even if the Police have failed to investigate such an assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of Alibi. See Yanor and Anor vs. The State (supra). It can be seen that failure of the police to investigate, does not, automatically, mean failure of the prosecution’s case. There is a rider which places such onus, on the accused person on the balance of probability. See Ime David Idiok vs. The State (2008) 13 NWLR pt.1104 pg.223”
In sum, what the above means is that where the accused raises the defence of Alibi and it is not investigated, he can still be convicted if there is a stronger and credible evidence before the court; See Aiguoreghian vs. The State (supra), Nwosisi vs. The State (1976) 6 SC pg.109.

The Appellant though he raised a defence of Alibi did not give adequate particulars and, therefore, the Police could not investigate. However, the Appellant was positively fixed to the scene of crime. The prosecution adduced credible, cogent, unassailable, admissible and adequate evidence to pin the accused to the crime scene.

The Appellant was positively identified by PWs because he was wielding the gun at the first interaction with the PWs. He was also said to be the one commanding the operation. The telephone number given at the scene of the crime to facilitate payment of what the Appellant demanded was one number that connected him with the other accomplices and used in tracking him down. He did not deny this fact. The Appellant and the Nigeria Navy vehicle used in the operation were positively identified by the PWs.

The trial court in her judgment rejected the so-called confessional statement Exhibit P5 as the Appellant resiled on it. There was no trial within trial conducted as to the authenticity of Exhibit P5. Therefore, the trial Judge was right in not placing reliance on it. However, the evidence of the PWs are identical to what was in Exhibit P5. The trial Judge rejected the Alibi of the Appellant and accepted the evidence of the PWs as being credible.

This issue is, therefore, resolved against the Appellant.

ISSUE 2
The learned Appellant’s counsel in his brief made heavy weather about the identification parade conducted by the Police. Counsel submitted that the PWs did not identify the Appellant as their assailant in Panti Police Station. This is not so as the Appellant was arrested after he had been lured to the Mr. Biggs in Alakija with the telephone number they left at the scene of crime. He escaped from the Police Station the very next day. He was rearrested about six (6) weeks later by the Nigeria Navy and taken to their barracks. It was there that an identification parade was conducted with the Police IPO in attendance. The evidence of the identification parade conducted revealed that it was done according to law. More than twenty uniformed Naval Officers were paraded. All the three PWs identified the Appellant positively. The Naval vehicle used in the operation was also identified.

It is important to note that the PWs also identified the two accomplices now at large with passport photographs of over Forty [40] Naval Officers.

The PWS in their evidence (examination in chief and cross examination) that the Appellant with his two (2) accomplices accosted them twice, molesting and terrorizing them with weapons. This gave the PWs the opportunity of observing their physical features well. The PWs said that the scenes were illuminated by the vehicle lights. They were also, at one point, in front of an industry that had security lights illuminating the scene.

In total, the PWs spent enough time with the Appellant and his two (2) accomplices. This gave them ample time to really observe their physical features.

The PWs positively, therefore, identified the Appellant from a group of Naval Officer paraded at the Nigeria Navy Barracks. The PWs also identified the other two (2) accomplices now at large from a host of passport photographs. It is important to state here the Appellant alleged that the PWs did not identify him at the Police Station. It is in evidence that when the Appellant was arrested he was taken to Panti Police Station from where he escaped the very next day. When he was re-arrested about six (6) weeks later, he was taken to the Nigeria Navy Barracks.

The PWs never saw him again after their ordeal until they positively identified him at the identification Parade conducted in the Nigeria Navy Barracks.

The identity of the Appellant cannot be said to be in issue as the PWs had knowledge of the Accused person. See Archibong vs. 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.
The Courts have re-iterated that 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. The PWs had ample opportunity to observe the features of their assailants which led to a positive identification of them. The PWs recognized the Appellant and his accomplices.
Eyisi vs. The State (2001) 8 WRN pg. 1.

Identification evidence is generally to show that the person charged with an offence is the same person who committed the offence. Where the trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Ukpabi vs. State (supra); Archibong vs. State (supra).

In the instant case, the trial Judge satisfied itself about the identity of the Appellant.

The PWs recognized and identified the Appellant and his other two (2) accomplices. The PWs were able to recognize them because they had a prolonged encounter with them. The area they were confronted was properly illuminated by the light from the factory and the head lamps of the vehicles.

The telephone communication with the Appellant by one of the PWs positively placed the Appellant at the scene of crime since the telephone number was given at the Scene of crime. The Appellant had not denied the telephone number and the way he was lured to the Mr. Biggs in Alakija where he was arrested for the first time. Even though he denied making the statement Exhibit P5, its content was in tandem with the evidence of the PWs. Exhibit P5 does not become inadmissible because the Appellant denied making it or retracts the confession on Oath. The confessional statement cannot also be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie vs. State (2007) 9 NWLR pt.1038 pg.30, Oche vs. State (2007) 5 NWLR pt.1027 pg.214, Okpong vs. Queen (No.1) (1961) 1 SCNLR pg.53.

This was what the trial Judge stated. She did not accept that Exhibit P5 was a confessional statement. However, Exhibit P5 was taken into consideration to decide what weight could be attached to it; Dibie vs. State (supra), Ukpong vs. State (supra). In this case, the evidence of the PWs were reliable and goes to no other conclusion other than the identity of the Appellant was not in doubt.

It was also not in doubt that he participated in the robbery whilst carrying a weapon – military rifle.

The Appellant had alleged some contradictions in the evidence of the PWs. The Courts have held that 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 while also creating some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. See Theophilus vs. The State (1996) 1 NWLR Pt.423 pg.139, Chukwu vs. State (1996) 7 NWLR pt.463 pg.686.

This issue is, therefore, resolved against the Appellant. The issues articulated and determined are all resolved against the Appellant. This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the trial court and the sentence passed.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, UZO I. NDUKWE-ANYANWU JCA. In Ogoala v. State (1991) 2 NWLR (Pt.175) 500. The Supreme Court per Nnaemeka Agu JSC observed:
“…It is of course when the defence of alibi has been duly raised and the accused person additionally discharges the evidential burden incumbent on him by giving the particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove, the alibi is cast on the prosecution. Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi: it is part of the onus cast on the prosecution to disprove the alibi.”

The Appellant did not discharge the evidential burden on him as would necessitate the onus to shift to the prosecution to disprove the alibi. At any rate, there was positive evidence that he was at the scene of the crime. I agree with the reasoning and conclusions of my learned brother. I too find no merit in the appeal. I dismiss it and affirm the judgment of the lower Court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, U.I. NDUKWE-ANYANWU JCA and I agree with the reasoning and conclusion arrived therein.

Let me say a word or two about the defence of Alibi which cannot avail the Appellant in this case as the Appellant was positively fixed to the scene of the crime. In the case of AYAN V. THE STATE (2013) 15 NWLR (PT.1376) 34, the court held as follows:
“It is the law my lords, that where the presence of an accused is fixed at the scene of the crime, the defence of alibi, no matter how beautifully put up is defeated and need no investigation.”

More so, while identification evidence is important to show that the person charged with an offence is the same as the person who was shown committing the offence, there was cogent evidence provided by the Respondent during trial which unequivocally pinned the Appellant to the scene of the crime and the trial Judge satisfied itself about the identity of the Appellant.

The Appeal therefore is unmeritorious and I also dismiss it and abide by the consequential orders made therein.

Appearances

Eubena Amedu, Doris Okosi, Oliver EyanFor Appellant

AND

E. I. Alakija (Mrs) – DPP, O. Akin-Adesomoju [Mrs) – CSC, O. A. Olugasa (Mrs) CSC, A. Omolua (Miss)For Respondent