TAIWO OLATUNJI v. THE STATE (2016)

TAIWO OLATUNJI v. THE STATE

(2016)LCN/8182(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of February, 2016

CA/I/287/2013

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHETHER IT IS THE DUTY OF AN ACCUSE PERSON TO RAISE THE DEFENCE AT THE EARLIEST OPPORTUNITY

The law is fully settled and well defined that the defence of alibi must be raised at the earliest opportunity to enable the prosecution to investigate and disprove same at the trial. It is belated if it is raised for the first time at the stage when the prosecution had closed its case and the accused had entered the witness box to make out his defence. per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT: WHETHER A COURT CAN CONVICT SOLELY ON A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

In resolving this issue, I wish to begin by emphasizing that the law remains settled and well-defined in numerous decided cases of this Court and the Supreme Court that a free and voluntary confession which is direct and positive, remains the best evidence which the prosecution can present in proof of the charge against an accused. Accordingly, where such admission or confession is proved to be true in any criminal trial, it is sufficient without more, to ground a conviction of the maker of the statement for the offence he is charged with. See SAIDU VS. STATE (1982) 4 SC 41, UZOKA VS. F.R.N. (2010) 2 NWLR (Pt.1177) 118 and FRANCIS NKIE VS. F.R.N. (2014) 58 NSCQR 899.
Before a trial Court can rely on confessional statement to convict an accused for the offence charged; it is required as a matter of established practice, to ascertain the truth of the confession. That is, any confessional statement must be tested and examined in the light of other evidence outside of it. In the evaluation of the evidence of the confession, the trial Court is enjoined to test the truth of the confession by answering questions adumbrated and highlighted in the submissions of learned counsel on behalf of the Appellant after he referred and relied on the English case of R. V. SYKES (Supra) which was approved and applied by both the WACA and the Supreme Court of Nigeria. It is however not the law that in all cases the confessional statement must be corroborated before the trial Court can convict on it. Thus, as noted and emphasized earlier, once the confessional statement is direct, positive and unequivocal, it is best evidence and the trial Court can lawfully and conveniently convict on it without the need of any corroborative evidence. See SHAZALI VS. THE STATE (1988) 5 NWLR (PT. 93) 164 and UDOFIA VS. STATE (1984) 12 SC 139. per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER IT IS THE DUTY OF COUNSEL TO OBJECT TO THE VOLUNTARINESS OF STATEMENT OF AN ACCUSED BEFORE IT IS ADMITTED AND IMPLICATION OF FAILURE TO OBJECT TO THE SAME

Against this background, I wish to point out that where an accused person alleges that an extra-judicial statement he purportedly earlier made to the police, which also amounts to a confession of the offence he was subsequently charged with, was not voluntarily made by him, the proper stage of the trial at which he should raise an objection to its admissibility is when the prosecutor seeks to tender it in evidence as part of its case and proof of the crime alleged against the accused. In other words, where an accused denies the voluntariness of his extra-judicial statement and the prosecution maintains that it was confessional of the crime charged, the practice is for such accused to object to its admissibility at the time it was to be received in evidence. The Court will then proceed to determine its voluntariness or otherwise after conducting a trial within trial. The purpose of a trial within – a trial is to determine whether the extra-judicial statement in issue has satisfied the test of voluntariness or otherwise for it to be admitted in evidence or rejected as the case may be. The Court of trial must be appropriately moved to invoke its procedural power to conduct a trial within-a trial only at the proper stage of the trial. Any objection raised after the prosecution has closed its case ought not to be countenanced or considered by the trial Court nor sustained on appeal. See EFFIONG VS. STATE (1998) 8 NWLR (Pt. 562) 362, GBADAMOSI VS. STATE (1992) 9 NWLR (Pt. 266) 465 and ALARAPE VS. STATE (2001) FWLR (Pt. 41) 1872. per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

TAIWO OLATUNJI Appellant(s)

AND

THE STATE Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court, Ota Judicial Division delivered on 9th July, 2013. The Appellant was arraigned on a two count charge of conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act and Attempted Robbery under Section 2(2) (a) of the same Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of the Federal Republic of Nigeria, 2004.

Upon arraignment, the Appellant pleaded not guilty to the 2 count charge. During the trial, the prosecution called and relied on the oral testimony of 3 witnesses as well as Exhibits A ? G4. The Appellant testified in his own defence and did not call any other witnesses, respective learned counsel addressed the Court after which the Court adjourned for judgment. In its judgment the Lower Court found the Appellant guilty and convicted him on each of the 2 counts of the charge and proceeded to sentence him to 14 years imprisonment.

?The Appellant was dissatisfied with the conviction and sentence. He appealed to this Court in a notice of appeal filed on

22/7/2013. By leave of this Court, the notice of appeal was amended and an amended notice of appeal was deemed filed on 15th June, 2014. It contains 4 grounds of appeal, which are hereby reproduced in full thus:-
GROUND 1
The learned Trial Judge erred in law and, thus, came to a wrong decision in respect of the charge against the Appellant herein, when she held that the confessional statements tendered by the prosecution (Exhibit A and B) were properly admitted in evidence against the Appellant and, thereafter proceeded to convict the Appellant of the offences for which he was charged.
PARTICULARS
i) During Trial, the Appellant and his co-accused both retracted their confessional statements (Exhibits A and B) on the grounds that they only signed same after they were tortured and after they were promised that they would be released if they signed them.
ii) Although the Defence Counsel had inadvertently omitted to object to the admissibility of Exhibits A and B, respectively, at the time the prosecution sought to tender same in evidence, an Appellant remains at liberty to challenge the contents of this purported confessional statement during his defence. An accused

person is presumed to be innocent, until proven guilty. See Section 36 and 39 of the Constitution of the Federal Republic of Nigeria.
iii) The Trial Court had the duty, once the Appellant retracted Exhibit A, to consider the weight to be attached thereto any before placing reliance thereon and convicting the Appellant on the basis thereof. See The State v. Salawu (2011) 8 NWLR (part 1279) 580 at 625 H – A. This the learned Trial Judge failed to do.
iv) The reliance of the learned Trial Judge on Exhibits A and B, respectively, without testing their veracity or voluntariness occasioned a miscarriage of justice to the Appellant.
GROUND 2:
The Trial Court erred in law when it held at page 14 of the Judgment that “I need to add that the kind of facts Exhibit A and B contain are piece of evidence that can only be known to Accused persons, e.g. names of the persons they live with. The fact that they stated that apart from themselves, the other persons who lived with them were not partakers in the commission of the offence. The schools they attended. The towns they are from etc. I therefore hold that from all the above evidence considered the 1st and 2nd

Accused persons were acting in concert and were ad idem in conspiracy to dispossess the PW1 of his motorcycle and I find each of the 1st and 2nd accused persons guilty as charged in Count 1, the conspiracy to commit armed robbery on PW2? and, thus, proceeded to convict the Appellant of the offence of conspiracy to commit armed robbery and impose a sentence of 14 years imprisonment on him.
PARTICULARS
i) A conspiracy in law consists of agreeing or acting in concert to achieve an unlawful act to do a lawful act by unlawful means.
ii) For the prosecution to successfully establish the offence of conspiracy, it must prove the conspiracy as described in the charge and that the appellant was engaged in it, or prove circumstances from which the Judge, may presume or infer it.
iii) The Court used the retracted confessional statements of the Appellant and his co-accused and the evidence of PW1 and PW2 as the basis for arriving at its decision.
iv) The learned Trial Judge failed to test the veracity and voluntariness of the purported Confessional Statements (Exhibit A and B), as was required in the circumstances.
?v) There was a material conflict in Exhibit A and the

evidence of PW2 regarding the time of the arrest of the appellant; whether 7am or 11pm, and this reasonable doubt as to the correctness of Exhibit A and the truthfulness of the evidence given by PW2.
vi) The learned Trial Judge failed to apply the tests laid down in a plethora of authorities in respect of the evaluation and the weight to be attached to a confessional statement, whether or not retracted, and thus fell into error in concluding that the appellant was guilty of conspiracy to commit armed robbery.
GROUND 3
The learned Trial Judge erred in law and thereby came to a wrong decision when she found the Appellant guilty of the offence of armed robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R 11, LFN 2004 and, thereupon, imposed a sentence of 14 years imprisonment with hard labour on him.
PARTICULARS
i) By virtue of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11 LFN 2004, for the prosecution to establish the offence of armed robbery against an accused, person, the prosecution must prove that a robbery has taken place, that the robbery was an armed

robbery, and that the accused person participated in the armed robbery See: Oseni vs. State (2012) 5 NWLR (Part 1293) 351; and Adekoya v. State (2012) 9 NWLR (Part 1306) 539.
ii) The Court used the purported Confessional Statements of the Appellant and his co-Accused respectively, and the evidence of PW1 and PW2 as the basis for arriving at its decision.
iii) Apart from the said Confessional Statements which were retracted at the Trial and the evidence of PW1 which was uncorroborated, the prosecution failed to establish the crucial ingredients: necessary to secure a conviction for the offence of armed robbery against the Appellant.
iv) Neither the rope nor the knife which were allegedly used to perpetrate the alleged offences was found on the Appellant at the time of his arrest.
v) There was uncontroverted and unchallenged evidence adduced at the trial which raised a defence of alibi in favor of the Appellant, which was totally disregarded by the Trial Court.
vi) The prosecution thus failed to establish beyond reasonable doubt, the most crucial ingredients of the offence of armed robbery, upon which conviction could properly have been made against the Appellant.
GROUND 4
The

judgment is against the weight of evidence.

To argue the appeal, learned counsel Mr. Ayodeji Omotosho, filed a brief of argument on 9/3/15 but same was deemed properly filed and served on 15/9/15. In response, the Respondent’s brief was filed on 13/10/15. According to the Appellant there are 2 issues for determination in this appeal. He identified and formulated them as follows:-
1. Whether the Confessional Statements tendered by the Prosecution (Exhibits A and B) were properly evaluated by the Trial Court in the light of the Appellant?s retraction thereof, such as to form a proper basis for the Court?s decision to convict the Appellant for the offences with which he was charged. (This issue has been distilled from Ground 1 of the Amended Notice of Appeal).
2. Whether in the light of the evidence adduced at Trial, the Respondent proved, beyond all reasonable doubt, that the Appellant committed the offences of conspiracy to commit Armed Robbery and Attempted Armed Robbery, respectively, such as to justify the Appellant’s conviction by the Trial Court.(This issue has been distilled from Ground 2 and 4 of the Amended Notice of Appeal).

?However, for the

Respondent, the 2 issues for determination on behalf of the Appellant can be re-formulated as follow:-
i. Whether from the totality of evidence adduced at the trial, the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act, 2011.
ii. Whether the Judgment of the Learned Trial Judge was against the weight of evidence.

At the hearing of the Appeal before us on 16/11/15, respective learned counsel each identified, adopted and relied on their briefs. Learned counsel to the Appellant went further to urge on the Court to allow the appeal and set aside the judgment of the Lower Court convicting and sentencing the Appellant to 14 years imprisonment. Against this position of counsel to the Appellant, learned counsel to the Respondent urged on the Court to dismiss the appeal and affirm the conviction and sentence on the Appellant.

No issue was formulated out of ground.3 of the grounds of appeal. It is accordingly hereby struck out.

?Though the 2 issues formulated and argued on behalf of the Appellant are a bit inelegant, I would still prefer to determine this appeal upon those 2 issues rather than

the re-formulation of them by learned counsel on behalf of the Respondent. Learned counsel to the Respondent failed to state if he was doing his reformulation of the Appellants’ issues from the same grounds of appeal the Appellant claimed to have done so or from other ground or grounds of appeal. The 2 issues re-formulated are not said to be from particular ground or grounds of appeal. Learned counsel for the Respondent also failed to point out the abandonment of ground 3 of the grounds of appeal and the consequence thereof. Also, the re-formulated issue of the Respondent appears to me to be one and the same thing. In my view the 2 are mutually inclusive.

Because of the inelegance of the issues formulated on behalf of the Appellant, I wish to re-formulate them thus:-
(1) Whether the extra, judicial statements of the Appellant (Exhibits A and B) were properly admitted in evidence by the Lower Court after the Appellant denied making them during the trial?And
(2) Whether the Respondent proved the guilt of the Appellant beyond reasonable doubt?

?In arguing the first issue, learned counsel for the Appellant, Mr. Ayodeji Omotosho began by referring to pages 30 to 31 of

the record of appeal to point out that during the course of trial, the Appellant testified that the statement in Exhibit A was not voluntarily made. He also pointed out that the Appellant was tortured and induced to make Exhibit A when he was promised to be admitted to bail and other things that could ordinarily render Exhibit A inadmissible in the circumstance. And while referring to the decision in THE STATE VS. SALAWU (2011) 8 NWLR (Pt.1279) 580 at 624 H – A. Mr. Omotosho, of counsel remarked that the learned trial judge had a duty to judiciously consider the weight to be attached to Exhibits A and B against the evidence of the appellant in his defence at the trial. He then pointed out that the guilt of the Appellant can only be founded on validly and lawfully admissible and admitted credible evidence. According to learned counsel, the learned trial judge failed to properly take the right steps on Exhibits A and B before relying on them to find the Appellant guilty as charged. He submitted that this Court is at liberty to interfere with the findings of the trial Court and he urged on the Court to so do.

?In a further effort Mr. Omotosho, of counsel contended

that the Lower Court evidently wholly failed to apply the tests laid down in a plethora of decided cases regarding to evaluation and weight to be attached to a supposedly confessional statement, whether or not retracted. According to learned counsel the Supreme Court, in its recent decision in SHODIYA VS. THE STATE (2013) 14 NWLR (Pt.1373) 147 at 168 C ? E, recalled and applied the old decision in R. V. SYKES (1913) CR. APP. Reports 233 which was earlier approved and applied by the WACA in KANU VS. THE KING (1952 ? 55) 14 WACA 30. He then went on to point out that the test to be applied are founded on answers to the questions whether:-
(a) there is anything outside the confession to show that it is true;
(b) the relevant statements of facts in it are true;
(c) the accused person had the opportunity of committing the offence charged;
(d) the confession was possible; and
(e) the confession is consistent with other facts which have been ascertained and proved.

In his paragraph 4.1.5, learned counsel; rather improperly and unprofessionally referred to the learned trial judge in the feminine gender and said;
With the greatest respect to her, appeared

overly fixated on the confessional statements tendered? such that she failed to judiciously considered the material inconsistencies evident in the testimonies of the prosecution witnesses”

Against this unprofessional remark of learned counsel, he referred to the evidence of some of the prosecution witnesses as set out in particular pages of the record of appeal to point out what he believed to be the inconsistencies the Lower Court failed to consider and upon which it did not make any findings.

While on the same issue, learned counsel remarked that the contradictions, conflicts: and down-right improbabilities in the case of the Respondent ought to have aroused the suspicion of the Lower Court regarding the truthfulness of the evidence of PW1, PW2 and PW3 as to make the Court to doubt them and to resolve any such doubt in favour of the Appellant. He argued that it was not enough for the Lower Court to disregard all those inconsistencies and contradictions as a ?discrepancy”. He then pointed out that where a contradiction in the evidence of prosecution goes to the root of its case a Court ought not to have convicted. He referred to and relied on the decision in IDOWU OKANLAWON VS. THE STATE (2012) LPELR 9771 where it was held that where

there is a contradiction in evidence as to a material fact, then it goes to the root of the prosecution case as to raise doubt, the benefit of which must be given to the accused, person. With respect to the circumstances of this matter Mr. Omotosho, of counsel believes that ascertaining the true identities of the assailants of PW1 is a material fact and he acoordingly, maintained that the evidence of PW1 with respect to identifying his assailants was manifestly unreliable.

?From his paragraphs 4.1.18 to 4.1.19, learned counsel Mr. Omotosho referred to certain established facts in the evidence of PW1 and vehemently argued that such facts taken as granted appear totally implausible and thereby affecting the credibility of the witness. For example, learned counsel argued that in the absence of street lights he believed that it was impossible for PW1 to fully recognize the Appellant and his co-accused who he claimed to be passengers on his motorcycle between the hours of 7.30 pm and 8.30 pm. Most of the arguments and submissions of counsel in paragraphs 4.1.20 and 4.1.20 of the brief appear to be more relevant for issue 2. So too paragraphs 4.1.25, 4.1.26, 4.1.27,

4.1.28 and 4.1.29.

While conceding that counsel to the Appellant omitted to object to the admissibility of Exhibits A and B at the time they were tendered: at the trial, he attributed that to inadvertence. He then submitted that the Appellant is still at liberty to challenge the contents of the documents as part of his constitutionally guaranteed right of presumption of innocence under Section 36(5). He added further that it still remained the duty of the Respondent to prove beyond reasonable doubt that the statements in Exhibits A and B were voluntarily made by the Appellant and his co-accused. Further to this, learned counsel added that any confessional statement that was not voluntarily made by the accused person remains inadmissible in evidence and where wrongly admitted without a trial within trial such statement is liable to being expunged from the record of the Court. While relying on the decision in DELE VS. THE STATE (2011) 1 NWLR (Pt.1229) 508 at 535; learned counsel argued that Exhibits A and B ought not to have been admitted in evidence in the circumstances of this appeal and to that extent same ought to have been accordingly expunged. He urged this

Court to so hold and resolve this issue in favour of the Appellant.

In what appears to me to be the response of the Respondent on this issue, learned counsel Mrs. Fakolade in paragraph 4.9 at page 7 of the Respondent? brief pointed out, while referring to page 24 lines 5 ? 8 of the record of appeal, that Exhibit A was admitted without any objection whatsoever.

Learned counsel then submitted that the proper stage to raise the involuntariness of a confessional statement is at the stage it was being tendered to be admitted in evidence, more particularly in circumstances where the purported marker of the statement was represented by counsel. While referring to the decisions in MUSA VS. STATE (2012) 3 NWLR (Pt.1286) 59 and OSENI VS. STATE (2012) 5 NWLR (Pt.1293) 351, Mrs. Fakolade, of counsel remarked that where an accused person had the opportunity of challenging his purported confessional statement to make or render its being received in evidence impossible, but failed to do so till it was admitted, it would be too late to deny the statement thereafter. Learned counsel added that according to the above authorities it is too late to seek to retract a

confessional statement after it was admitted without any objection by the defence. Against this background, Mrs. Fakolade of counsel recalled the views of the learned trial judge on this issue, more particularly as set out in the judgment at page 49 lines 18 – 23 and urged on this Court to hold that the extra-judicial statements of the Appellant (Exhibit A) and that of his co-accused (Exhibit B) were voluntarily made and properly admitted in evidence by the Lower Court.

In resolving this issue, I wish to begin by pointing out that the Appellant was the 1st Accused at the trial Court and in the course of the proceedings of that Court of 14th February, 2013, he was represented by learned counsel Mrs. A. K. Aiyedun. On that day the Court took the evidence of PW3. It was PW3 who claimed to have recorded the extra judicial statement of the Appellant and his co-accused. After a narration of all that he did with respect to this matter, learned counsel for the prosecution Mrs. O. O. . Ifemeje at page 28 of the record sought to tender the statement of the Appellant in evidence and Mrs. Aiyedun told the Court that she had no objection (see page 28 of record of appeal)

and same was admitted and market as Exhibit A. In her cross-examination of PW3, learned counsel Mrs. Aiyedun (see page 29 of record of appeal) nothing was mentioned by or asked of PW3 on the voluntariness or otherwise of Exhibit A, except where PW3 denied beating the Appellant.

At the risk of being prolix, but for convenience and clarity, I wish to set out the evidence of the Appellant at the trial Court in full:-
DW1 (1st Accused) male, Christian sworn on bible and states in Yoruba as follows:- my names are Taiwo Olatunji. I live at Owode Ilise at Owode Isale. I was a bricklayer. I came to know 2nd accused as a result of this case. I came to know PW1 when this case happened actually the next day.
I went to work on the day the offence was allegedly committed. I took a vehicle at Sango to Iju. At Iju, I came down and as I turned round I saw a crowd running helter skelter so I also ran. One man held me from behind and I saw he was a police officer. I asked for what I had done but they arrested me and beat me up and I was handcuffed. I was taken to Eleweran Police headquarters. At Eleweran, I told the police my job and home address. I told the police I was on my way to work.
?The police took me to a room and

handcuffed me and hanged me up and beat me. I denied committing any offence. A nail was hit into my buttocks. I was covered and that day the police brought 2nd accused for me to identify, I told the police I do not know him. I made the statement to the police after I was hit with the butt of the gun I appended my signature to the statement the police gave me to sign. The police told me I had been admitted to bail and could leave after I signed. I continue to be incarcerated.
O. O. Ifemeje State Counsel ? Cross examination.
?My names are Taiwo Olatunji. I am 18 years of age. I am from Isemile in Okeho Osun State. My mother is in my village. My father died 4 years ago. I never went to school. I started living in Owode about 5 years now. When I came to Owode I cannot say how old I was but someone brought me to Owode. I live alone in Owode. The house in Owode was rented by a friend to my senior brother but he does not stay with me. It is not true 2nd Accused and two others live in the house together. I deny boarding a bike belonging to PW1. It is not true I was apprehended by one person alone I was not the only one apprehended and taken to the police station.

We were about 10 in number.
I deny telling the police I boarded PW1?s bike I confessed when the police hit me with butt of a gun. It is not true vigilante arrested me and took me over to the police. The police arrested me at about 8.30a.m. I deny telling lies. It is not true. I sustained an injury while I was struggling with PW1 to rob his motorcycle. I deny conforming to the police. I owned the knife and rope. I told the police so under threat. It is not true I threw the rope in PW1?s neck. I deny cutting PW1 with a knife when he refused to leave me. I deny calling 2nd accused to help me at that point.

?Against this background, I wish to point out that where an accused person alleges that an extra-judicial statement he purportedly earlier made to the police, which also amounts to a confession of the offence he was subsequently charged with, was not voluntarily made by him, the proper stage of the trial at which he should raise an objection to its admissibility is when the prosecutor seeks to tender it in evidence as part of its case and proof of the crime alleged against the accused. In other words, where an accused denies the voluntariness of his

extra-judicial statement and the prosecution maintains that it was confessional of the crime charged, the practice is for such accused to object to its admissibility at the time it was to be received in evidence. The Court will then proceed to determine its voluntariness or otherwise after conducting a trial within trial. The purpose of a trial within – a trial is to determine whether the extra-judicial statement in issue has satisfied the test of voluntariness or otherwise for it to be admitted in evidence or rejected as the case may be. The Court of trial must be appropriately moved to invoke its procedural power to conduct a trial within-a trial only at the proper stage of the trial. Any objection raised after the prosecution has closed its case ought not to be countenanced or considered by the trial Court nor sustained on appeal. See EFFIONG VS. STATE (1998) 8 NWLR (Pt. 562) 362, GBADAMOSI VS. STATE (1992) 9 NWLR (Pt. 266) 465 and ALARAPE VS. STATE (2001) FWLR (Pt. 41) 1872.
Also, in IDOWU VS. STATE (2000) FWLR (Pt.16) 2672, it was held that a confessional statement which has been dully proved and admitted in evidence does not at a later stage of the

proceedings become inadmissible because the accused resiled from it or denied making it. The retraction of a voluntary confessional statement by an accused therefore does not render it inadmissible.

In its efforts to resolve this issue, the Lower Court remarked and held as follows:-
“The Accused persons were in Court when their respective Statements to the Police Exhibit A and B were sought to be tendered they did not object at all that it was involuntarily obtained, however in their subsequent testimony they stated that it was not voluntarily obtained.
I hold that it is late in the day for them to allege it was involuntarily obtained as it remains good evidence against them.
I need to add that the kind of facts Exhibits A and B contain are pieces of evidence that can only be known to Accused persons e.g. The names of all the persons they live with. The fact that they stated that apart from themselves the other persons who lived in the room with them were not partakers in the Commission of the offence. The schools they attended. The towns they are from etc.
?The graphic account as to how each of them participated in committing the offence is so sordid and

vivid, it is almost surreal. It would be impossible for the police to conjure up such a statement which contains so many personal details of the offence committed even when Accused mother died.”

?I have calmly read, considered and reflected on the above observation, remark and ultimate finding of the learned trial judge and I fully agree, without the slightest hesitation, that the denial or retraction of a confessional statement is of no moment if it was not done at the stage when it was being put in evidence or at stage when the Court can conduct a trial within- a trial to determine its voluntaries or otherwise. In the instant case where the Appellant failed to raise objection to voluntariness of the confessional statement when tendered by the prosecution, the trial Court was right to rely on same. The denial or retraction may however, be an issue of fact to be decided upon when the Court comes to consider the probative value or weight to be attached to such a confession. Against all the foregoing I am of the humble view that the Lower Court was right to have admitted and recorded Exhibits A and B in evidence, in the circumstances of the instant appeal. I am

unable to agree with learned counsel to the Appellant missteps or errors made by the trial Court with respect to Exhibits A and B. I accordingly resolve issue one against the Appellant.

On the 2nd issue, the main and principal contention of learned counsel to the Appellant is that the prosecution did not prove any of the ingredients of the offences of conspiracy and attempted armed robbery against the Appellant beyond reasonable doubt as required by law. It was argued by learned counsel Mr. Omotosho for the Appellant that the evidence adduced by the prosecution at the trial was riddled with fatal and material inconsistencies and contradictions thereby being unreliable and unsafe to warrant a conviction. For the Respondent, learned counsel had argued that the prosecution had adduced enough credible evidence in the form of the confessional extra judicial statement of the Appellant in Exhibit A as well as other strong credible evidence from PW1 and PW2 to prove the offences charged beyond reasonable doubt.

While relying on Section 135 (1) of the Evidence Act 2011, learned counsel on behalf of the Appellant explained that it is well established in the administration

of criminal justice that the burden of proving that a crime has been committed lies on the prosecution and the standard of proof is beyond reasonable doubt. And also while relying on the decisions in OSONDU vs. FED. REP. OF NIGERIA (2002) 12 NWLR (PT. 682) 483 AND IKEMSON VS. STATE (1989) 3 NWLR (PT.110) 455, learned counsel further explained that the definition of the crime of conspiracy requires the proof of an agreement by 2 or more persons to commit an unlawful act, coupled with intent to achieve the objective of the agreement. He added that this consists of an agreement to act in concert with one another to achieve an unlawful act. According to learned counsel, proof of the crime of conspiracy can be by direct evidence or circumstantial evidence. He then submitted that the findings of guilt of an accused person must necessarily defend on the quality of the evidence tendered by the prosecution. He submitted and argued further that the absence of any evidence other than retracted confessional statement of the Appellant and the oral evidence of PW1 necessarily raises doubt as to the guilt of the Appellant regarding the commission of the offences charged. Against these submissions, Mr. Omotosho, of counsel maintained that

where the testimony of an accused person at a trial is consistent with his innocence, such testimony could be or is probably true and where it is not proved to be untrue the accused will be entitled to an acquittal because a doubt would have been created as to his guilt. In his paragraph 4.2.8 at page 10, learned counsel continued his improper attack on the person of the learned trial judge.

?Just before concluding his arguments and submissions, Mr. Omotosho of counsel, picked holes in the oral evidence of PW1 and PW2. He highlighted some of the aspects of the testimonies which he believed are contradictory or inconsistent. He also argued that the Lower Court failed to dispassionately and properly evaluate the evidence led by the Appellant which raised the defence of alibi in his favour. He argued further that such evidence remained credible because on cross-examination, the Appellant remained unshaken and uncontroverted. According to learned counsel it was erroneous for the Lower Court to find and hold that the evidence of the Appellant in that respect was a ruse to confuse the Court. He also maintained that it was a further error for the Court to hold that the

Appellant was unable to dislodge the fact that he was at the scene of crime at the material time and he urged on this Court to interfere with these erroneous findings and resolve this issue in favour of the Appellant.

As a prelude, learned counsel to the Respondent set out the ingredients of the offences of conspiracy and armed robbery as established in decided cases. He then went on to highlight some of the key features of the evidence of PW1 and PW2 as well as Exhibit A. Against this background learned counsel Mrs. Fakolade referred to and relied on the case of BRIGHT VS. STATE (2012) 8 NWLR (PT.1302) 297 at 320 E ? F, and submitted that the proof of the offence of conspiracy is generally by circumstantial evidence or inference. Learned counsel added that the collateral: circumstances of this case and Exhibits A and B constituted facts from which the ingredients of the offence of conspiracy can be inferred and then maintained that the Lower Court was right to hold that the Appellant acted in concert with the 2nd accused to disposes PW1 with his motorcycle. According to Mrs. Fakolade, of counsel, where accused persons act in concert to

commit a crime, the act of any one of them is the act of all of them thereby being corporately criminally liable for the outcome of their criminal enterprise because it did not matter which of them did what. She cited and relied on the decision in JIMOH VS. STATE (2012) 3 NWLR (Pt.128) 144 AT 180 B ? D. Against the backdrop of this, learned counsel proceeded to vigorously support and defend the evaluation and entire findings of the Lower Court on the evidence of the witnesses and confessional statements of the Appellant and this co-accused.

While referring to the decision in GIRA VS. STATE (1996) 4 SCNJ 95 AT 109 and MUSA VS. STATE (2012) 3 NWLR (PT.1286) 59 AT 94 E ? F, learned counsel pointed out that it is not every discrepancy between what one witness says and what another says or between what a witness says at one time and what he says at another that is sufficient to destroy the credibility of a witness altogether. She added that for any contradiction in evidence to warrant a doubt in favour of an accused it must be material and substantial and not merely tangential, peripheral or inconsequential. Learned counsel maintained that the

discrepancies complained of by learned counsel to the Appellant in this appeal do not touch on material points or substance of the case. She referred to TANKO VS. STATE (2008) 16 NWLR (Pt.1114) 597 AT 640 E ? F and ARCHINBONG VS. THE STATE (2006) SCNJ 202 AT 236.

On the contention of the Appellant that the Lower Court failed to consider, evaluate and afford him the benefit of the defence of alibi, Mrs. Fakolade submitted that where the defence of alibi is raised, the evidential burden is on the accused to lead evidence of where he was at the material time. Learned counsel pointed out that in the instant appeal, the Appellant did not raise the defence of alibi during the investigation of the case. She then argued and maintained that it is trite that an accused person who wishes to rely on an alibi as a defence must do so at the earliest opportunity, giving sufficient particulars in respect thereof. Learned counsel added further that the proper and auspicious time to do this is at the stage when the allegation against him was being investigated.

In conclusion, learned counsel explained and submitted that the learned trial judge properly and adequately

evaluated all the evidence placed before him before arriving at his findings and conclusions. According to learned counsel, the evaluation of evidence and ascription of probative value to same are the primary functions of trial Courts because they saw, heard and assessed the witnesses. In the opinion of learned counsel, the learned trial judge properly and adequately discharged this function when evaluating the evidence before it and made findings which are wholly justifiable in that behalf. Against this background learned counsel argued that an appeal Court is not entitled to make contrary findings, particularly when such findings depend largely on the credibility accorded to a witness or witnesses by a trial Court. Learned counsel relied on the decisions in ISIBOR VS. THE STATE (2002) 2 SCNJ 162 at 168 and BASHAYA VS. THE STATE (1998) 5 NWLR (Pt.550) 351 and argued that it is the duty of the Appellate Courts to ascertain whether or not there was evidence upon which the trial Court acted and not to substitute their own views for that of the trial Court, and in the absence of compelling evidence indicating erroneous appraisal of fact and conclusions, must show

utmost restraint, resist and reject any temptation to interfere with well considered findings of trial Courts. Learned counsel urged on the Court to find in favour of all the steps and methods employed by the learned trial judge in arriving at his decision of the evidence before him and go further to resolve this issue in favour of the Respondent against the Appellant.

of established practice, to ascertain the truth of the confession. That is, any confessional statement must be tested and examined in the light of other evidence outside of it. In the evaluation of the evidence of the confession, the trial Court is enjoined to test the truth of the confession by answering questions adumbrated and highlighted in the submissions of learned counsel on behalf of the Appellant after he referred and relied on the English case of R. V. SYKES (Supra) which was approved and applied by both the WACA and the Supreme Court of Nigeria. It is however not the law that in all cases the confessional statement must be corroborated before the trial Court can convict on it. Thus, as noted and emphasized earlier, once the confessional statement is direct, positive and unequivocal, it is best evidence and the trial Court can lawfully and conveniently convict on it without the need of any corroborative evidence. See SHAZALI VS. THE STATE (1988) 5 NWLR (PT. 93) 164 and UDOFIA VS. STATE (1984) 12 SC 139.

With respect to the judgment of the Lower Court in this appeal, I will like to allow it to speak for itself just like any document that is before a

Court of law as an evidential material. After setting out the well established ingredients of the crime of armed robbery, just like it did with respect to the offence of conspiracy respectively at pages 55 and 51 of the record of appeal, the learned trial judge had this to say:-
I wish to state that the PW1 gave a graphic and vivid account as to how the two Accused persons attempted to rob him of his motorcycle.
I wish to state that from the case for the defence it is not being controverted in any form or shape that on the day as charged the PW1 was robbed of his motorcycle by persons armed with knife and rope.
The case for the defence is was not the Accused Persons. I have observed the demenour of the PW1. I believe his evidence intoto. He was not shifty, he answered questions put to him promptly.
Hence I hold most unequivocally that on the day in question, there was a robbery and PW1 was the victim and that such robbery was by persons armed with a rope and knife which were used offensively.
The next issue to be determined is the identity of the culprits.
?The PW1 in his evidence in Court graphically gave an account as to how the 1st and 2nd Accused Persons boarded

his motorcycle, attempted to strangle him with a rope and put knife to his neck and tried to take away the key of the motorcycle. PW1 also succeeded in taking the shirt of the 1st Accused.
I wish to also refer to the evidence of the PW2 who was part of the vigilante team who eventually arrested the Accused in the swamp.
It was the testimony of the PW2 that the 1st Accused upon being brought out of the swamp identified the knife Exhibit E and rope Exhibit D as his property and the (PW2) was of the team of person including the Policemen who brought the 1st Accused to the Eleweran Police station Abeokuta. It was also his testimony. It was in the swamp the 1st Accused was captured. Accused persons has not given any evidence why PW3 will lie against them.
It was also PW2?s evidence the 2nd Accused upon being arrested also in the swamp was brought to join 1st Accused who had earlier been arrested.
His account in this regard corroborates PW1?s testimony that the Accused persons ran into the swamp upon trying to rob him if not for the intervention of the two cyclists.
?Learned counsel to the Accused persons had submitted that there is a contradiction as to

whether the PW1 said he was not, PW2 said PW1 was present.
I have looked at this piece of alleged contradiction and in my mind, it is not a contradiction but discrepancy for the following reasons:-
1. The offence on the charge was allegedly committed on 23/2/2013.
The PWs gave evidence in 2013 that is about 3 years later.
In this regard the Court per Fasannu JCA in Ebiebeniwa vs. The State 2008 LPERLR. CA/I/162/2005 explaining the principle and distinction made between contradictory evidence and Discrepancy in evidence said thus:
A piece of evidence contradicts another when it affirms the opposite of what other evidence has stated not when there is just a minor discrepancy between them. Two-pieces of evidence contradict another when they are by themselves unreasonable.
On the other hand, a discrepancy may occur when a piece of evidence stops short of or contains some minor difference in details. Human faculty may miss minor details due to lapse of time and error in narrating order of sequence.”
See also from Uwagboe vs. State 2008 All FWLR Pt.419 at 425 at 432-433.
?It is therefore trite it is not every discrepancy or contradiction which affects the substance of criminal

case.
In this case, the alleged contradiction in the evidence of PW1 and PW2 does not pertain to the commission of the offence by the Accused but whether PW1 was present when 1st Accused was arrested.

This much part of the judgment appears to me to be a direct answer to debunk and disprove any assertions, arguments, submissions of learned counsel to the appellant on the good quality or otherwise of the evaluation of evidence on record of the learned trial judge. Mr. Omotosho, of counsel was definitely wrong in his submissions that the Lower Court failed to properly evaluate the evidence before it.

?Learned counsel Mr. Omotosho has argued in his paragraph 4.2.15 that the onus is not on the Appellant to prove his alibi, rather it is on the prosecution to disprove it. This may indeed be so, but the law is fully settled and well defined that the defence of alibi must be raised at the earliest opportunity to enable the prosecution to investigate and disprove same at the trial. It is belated if it is raised for the first time at the stage when the prosecution had closed its case and the accused had entered the witness box to make out his defence. With respect to the

facts in the instant appeal, the learned trial judge further took up the quality of the evidence of PW1 and PW2, the confessional statement of the Appellant in Exhibit A his views, observations and findings on the defence of alibi as raised by the Appellant as DW1. Also at the risk of being prolix, I wish to quote extensively from the judgment of pages 58 to 59 of the record of appeal thus:-
I wish at this stage to say that the evidence of the PW1 was not shaken under cross examination as to who his assailants were. The evidence of PW2 under cross examination was also not shaken as to the fact that 1st Accused was arrested out of the swamp after the incident by himself and other vigilante men and that he identified the rope and knife as his.
I wish at this stage to begin refer to the retracted confession of the Accused person in Exhibits A and B.
The 1st and 2nd Accused persons in these statements stated unequivocally and with much clarity as to how they committed the armed robbery on PW2 and how they were arrested.
?In every material particular, the statements are consistent with the evidence of PW1 as to the fact that the Accused persons are the culprits and in

Exhibit A and B each of the Accused Person owned Exhibit D and E as the weapon they used to perpetrate the robbery.
I find their evidence in Court, a ruse calculated to confuse the Court. In their evidence in Court, the Accused persons were not able to dislodge the fact that they were at the scene of crime. The Accused persons were not able to call witnesses who could establish they were elsewhere at the time of the commission of the offence or arrested under different circumstances from that proffered by the prosecution. The story they have told the Court they did not state they told the police in their statement they gave the police so their claims could be investigated by the police. Their evidence in Court does not contain details of where they were with persons and addresses or exact places the police could have used in investigating same. In fact in their evidence before the Court the Accused persons never testified they told the police they had any alibi.
Now even if they did, it is trite that in law an alibi raised for the first time in the witness box is not serious defence.
?In Ozaki Vs. State 1990 SC Pg. 109 the Court held that it is the law that

notice of intention to raise an alibi must be given. This is normally done at the first available opportunity by a suspect in answer to a charge by the Police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police.
I wish to state that in this case there is overwhelming evidence fixing the Accused Persons at the scene of the incident including their own confessional statements which I hold is good evidence against them in view of the ample corroboration it provides for PW1 and PW3’s evidence revealing they are the culprits in this case.

Against all the foregoing, I do not see how learned counsel could make so much hue and cry about the approach and attitude of the learned trial judge to the evidence before him. It was equally wrong for counsel to hyped up and to exaggerate and overblow issues as he was not the lawyer who represented the Appellant at the trial. There is therefore a seeming misunderstanding or deliberate misinterpretation of the evidence adduced at the trial by learned counsel Mr. Omotosho. The choice of words such as “fixated” to describe the approach of the learned trial judge by Mr. Omotosho, of counsel, is inappropriate and grossly

unprofessional. I hope learned counsel will in future avoid such pejorative and inappropriate language in arguing appeals. In totality, I am unable to agree with counsel, on behalf of the Appellant, that the Lower Court had in any way failed in its adjudicatory duties with respect to the facts and circumstances in this appeal. This issue is also resolved against the Appellant.

Having resolved all the 2 issues for determination in this appeal against the Appellant, this appeal is dismissed for lacking in merit. The judgment of the Ogun State High Court, Ota Judicial Division delivered on 9th July, 2013 in Charge No.HCT/7R/2012 per Ogunsanya, J. is affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading before now the judgment delivered by my learned brother, A. A. B. Gumel, JCA.

The issues relevant to the just determination of this appeal were exhaustively considered and resolved by my learned brother. There is nothing else I can say that will add value to the reasoning and conclusion reached at by my learned brother. Accordingly, I also find that this appeal has no merit and is accordingly dismissed.

I affirm the judgment of the Court below,

delivered on the 9th day of July, 2013 in Charge No.HCT/7R/2012.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of having a preview of the judgment of my learned brother Ali Abubakar Babandi Gumel JCA.

?My lord has painstakingly considered the issues in the appeal and I entirely agree with both the reasoning and conclusions reached by my lord. I really do not have anything useful to add.

Appearances

Mr. Ayodeji OmotoshoFor Appellant

AND

Miss F. F. Fakolade (Principal State Counsel, Ogun State, Ministry of Justice)For Respondent