AKEEM SANUSI v. THE STATE (2019)

AKEEM SANUSI v. THE STATE

(2019)LCN/13358(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of June, 2019

CA/IB/43C/2018

RATIO

Whether the lower Court was right when it held that there was no need for police to conduct an identification parade for the P.W.1 and P.W.2 to identify the Appellant

It is trite that in any criminal trial, and especially in a charge of armed robbery it is cogent that an accused person must be pinned to the commission of the crime. This is done through identification evidence adduced by the prosecution from its witnesses which include the victim of the crime. A distinction must be made between recognition of an accused by a witness and identification of an accused by a witness. An accused is recognized by a witness if he points out the accused as the person who committed the crime without any aid in so doing. This occurs when an accused is well known to the witness prior to the criminal act for which he is charged and will usually be done by the mention of the accused name to the police. While identification of an accused is necessary when the accused is unknown to the witness prior to the commission of the crime. See IBANE VS. THE STATE (2012) LPELR) 9702 (CA) on the importance of identification in criminal trials and the duty of Court where same is in issue.PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL LAW AND PROCEDURE:IDENTIFICATION EVIDENCE: DEFINITION

The Supreme Court in NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1052) PG. 633 AT 651 ? 652 PARS E ? A held thus:
Generally in criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. More often than not, the controversy always rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It follows therefore that the identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence.PER FOLASADE AYODEJI OJO, J.C.A.

WHAT THE COURT MUST CONSIDER IN ASCRIBING VALUE TO EVIDENCE OF AN EYE WITNESS IDENTIFICATION OF A CRIMINAL

To ascribe any value to the evidence of an eye-witness re identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1) Circumstances in which the eye-witness saw the suspect or defendant.
2) The length of time the witness saw the subject or defendant.
3) The lighting conditions.
4) The opportunity for close observation.
5) The previous contacts between the two parties.PER FOLASADE AYODEJI OJO, J.C.A.

CAUTION IN ACCEPTING IDENTIFICATION EVIDENCE
Whenever the case of an accused person depends wholly (as in the instant case) or substantially on the correctness of the identification of the accused or defendant which defence alleges to be mistaken, a trial judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance of the correctness of the identification.PER FOLASADE AYODEJI OJO, J.C.A.

IDENTIFICATION PARADE: WHEN IT IS NECESSARY

When is an identification parade necessary? The Supreme Court while shedding light on when an identification parade becomes necessary held in the case of WISDOM VS. THE STATE (2017) 7 NWLR (PT. 1586) 446 AT 468 PARAS B ? F as follows:
In AKEEM AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619; (2013) 85 SCM 157 (2013) ALL FWLR (PT. 714) 139. In this Court, I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time where the victim might not have the opportunity of observing the features of the accused. An identification parade would become necessary only in the following situations of visual identification;
i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence;
ii) Where the victim was confronted by the offender for a very short time; and;
iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See R V TURNBULL (1976) 3 ALL ER 549 (1977) QB 224 AT 228; IKEMSON & ORS. VS. THE STATE (1989) 1 CLRN 1 (1989) 3 NWLR (PT. 110) 455?.
It follows therefore that the guiding principle for the conduct of an identification parade envisage circumstances where the accused is not known to the Complainant before the alleged commission of a crime and/or where it is impossible for him to recognize the accused after the commission of the crime due to the circumstances in which the crime was committed. An identification parade becomes necessary when there is real dispute about the identity of the accused person. In NDUKWE VS. THE STATE (2009) LPELR 1979 (SC) the Supreme Court held thus:
In summary, an identification parade is limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged.PER FOLASADE AYODEJI OJO, J.C.A.

WHERE CONTRADICTORY EVIDENCE WILL LEAD TO DOUBT IN THE MIND OF THE COURT

It is trite that where a contradiction in the prosecution’s case affects the substance of a fact or facts in issue in the charge a doubt can be created in the mind of the Court. In other words it is not every contradiction that will render the testimony of a witness unreliable. The Supreme Court in the case of ODUNEYE VS. THE STATE (2001) 2 NWLR (PT. 697) PAGE 311 AT 330 PARAGRAPH G – H held thus:
On the contrary, it has long been laid down by a long claim of authorities that not every contradiction is fatal to the prosecutions case save where such contradiction goes to the substances and materiality of a fact or facts in issue in the charge to raise doubt in the mind of the Court. . . .
See also EROMOSELE VS. FEDERAL REPUBLIC OF NIGERIA (2017) 1 NWLR (PT. 1545) 55 AT 101 – 102 PARAGRAPHS F C.PER FOLASADE AYODEJI OJO, J.C.A.

PROOFS OF EVIDENCE ARE NOT THE SAME AS STATEMENT OF WITNESSES
In FEDERAL REPUBLIC OF NIGERIA VS. WABARA & ORS. (2013) LPELR 20083 (SC), the Supreme Court held as follows:
…Proofs of evidence are not the same as the statements of the witnesses the Appellant would call at the trial. Proofs of evidence are summaries of the statements of those witnesses to be called at trial by the Appellant. It is for that reason that the rules require an affirmation from the applicant that the evidence against the Respondents as summarized in the proofs of evidence prepared by the Appellant will be the evidence against the Respondent in respect of whose trial the Court is urged to grant the leave to proffer a charge.
See also IDAGU VS. THE STATE (2018) LPELR 44343 (SC).PER FOLASADE AYODEJI OJO, J.C.A.

INGREDIENTS FOR A CONTRADICTION TO BE CONSIDERED MATERIAL

In GOLDEN DIBIE & ORS. VS. THE STATE (2007) LPELR ? 941 (SC), the Supreme Court held as follows:
It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are equally expected in an unconnected evidence given from human memory. They are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that happened. There is therefore bound to be minor discrepancies in an account of the same event given by different eye-witnesses. Such could only not exists where such witnesses are schooled as to what to say.PER FOLASADE AYODEJI OJO, J.C.A.

ARMED ROBBERY: ESSENTIAL INGREDIENTS TO PROVE THE CRIME OF ARMED ROBBERY
The element of the crime of armed robbery for which the Appellant stood trial are as follows:
(1) That there was an armed robbery
(2) That the accused was armed in company with any person so armed
(3) That the accused while with arm or arms or in company with person so armed, participated in the robbery.PER FOLASADE AYODEJI OJO, J.C.A.

INGREDIENTS TO PROVE THE OFFENCE OF ROBBERY

The Supreme Court in the case of FEDERAL REPUBLIC OF NIGERIA VS. BARMINAS (2017) 15 NWLR (PT. 1588) 177 AT 210 PARAGRAPH C ? D identified the essential elements that constitute the offence of robbery as follows:
(a) That there was a robbery or series of robberies;
(b) That the robbery or each of the robberies was an armed robbery.
(c) That each of the accused persons was part or had taken part in the armed robbery or robberies?.
See also DIBIA VS. THE STATE (2017) 12 NWLR (PT. 1579) 196 and OFORDIKE VS. THE STATE (2017) 3 NWLR (PT. 1553) 468 AT 484 PARAGRAPH H.PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

AKEEM SANUSI Appellant(s)

AND

THE STATE Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the Judgment of the Ogun State High Court sitting at Otta in Charge No.HCT/4R/2012 delivered on the 12th of December 2017 finding the Appellant guilty of Conspiracy to commit armed robbery and consequently sentencing him to death by hanging.

The Respondent had at the lower Court arraigned the Appellant on a two count charge. The charge which is at page 3 of the Record reads thus:
COUNT I
STATEMENT OF OFFENCE
Conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
AKEEM SANUSI (M) and another person still at large on or about the 5th September, 2008 at Dada Asalla Junction in Elejigbo in the Otta Judicial Division conspired to commit Armed Robbery.

COUNT II
STATEMENT OF OFFENCE
Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE
AKEEM SANUSI (M) and another person still at large on or about the 5th September, 2008 at Dada Asaila Junction in Elejigbo Estate in the Otta Judicial Division while armed with a single barrel gun and other offensive weapons robbed Akinwade Shola of a Sagem 501, a Nokia 1252 phone, car keys, Company Access Cards, Drivers License and the sum of Forty Thousand Naira.

The Appellant pleaded not guilty to the two counts of the charge. After trial and arguments of counsel in their written addresses, the lower Court delivered its judgment convicting the Appellant on the two counts and sentenced him accordingly.

The lower Court at page 84 of the Record held thus:
For avoidance of doubt and at the risk of repetition, I find the Accused guilty on all the two (2) counts of the charge and convict him on each of the two (2) counts.

Still at page 84 the Court sentenced the Appellant as follows:
The offences for which the Accused has been convicted carry mandatory sentence of death penalty. This Court has no discretion in the matter.
Therefore on the count of Armed Robbery the Accused is sentenced to

death. That you AKEEM SANUSI be hanged by the neck until you be dead and may the Lord have mercy on you or as the Governor may direct?.

Dissatisfied with the whole judgment of the lower Court the Appellant filed a Notice of Appeal dated 8th January 2018 contained at pages 85 ? 92 of the Record. The Notice of Appeal contains six grounds. He seeks an order of this Court allowing the appeal, setting aside the judgment of the lower Court and an order of discharge and acquittal in his favour.

A summary of the case of the prosecution is that on the 5th day of September 2008 while P.W.1 and P.W.2 were heading home they were attacked by armed robbers at Igbo Eleji Junction popularly called Obasanjo Farm Junction in Otta around 10.30 a.m.

P.W.1 was dispossessed of his phones, the sum of N40,000, his Access Card as well as his car keys. The following morning P.W.1 called his phone. P.W.3 a policeman answered the call and informed him that the Appellant and others who robbed them have been apprehended. P.W.3 told him the phone rang in the pocket of one of the robbers who were already with the police when he (P.W.1) called. The Appellant

denied the charge.

In accordance with the rules of this Court, parties filed and exchanged briefs of argument. The Appellant?s Brief of Argument settled by Tairu Adebayo Esq. was filed on the 16th of March 2018. The Respondents Brief settled by R. A. Manuwa of Counsel was filed on the 14th of March 2018 and deemed as properly filed and served on the 3rd of April 2019.

Learned Counsel for the Appellant formulated the following issues for determination:
1. Whether the findings of the trial Court that there was absolutely no need for the police to conduct an identification parade for the P.W.1 and P.W.2 to identify the Appellant is not perverse (Ground 1, 2 and 3).
2. Whether the contradictions and inconsistencies in the prosecution witnesses (with Exhibit A, A1 and F) are not fatal to the prosecution?s case and whether the doubt created therein ought not to have been resolved in favour of the Appellant (Grounds 3 and 4).
3. Whether the trial Court was right when it held that the charge of armed robbery and conspiracy to commit armed robbery were proved beyond reasonable doubt by the prosecution to justify the conviction and

subsequent sentencing of the Appellant (Grounds 3 and 5).

Learned Counsel to the Respondent formulated one sole issue for determination to wit:
1. Whether from the entirety of the evidence on record as well as material available, the Respondent as prosecution established the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.?

I adopt the three issues identified by the Appellant?s Counsel with some slight modification as the issues for determination in this appeal. They are as follows:
1. Whether the lower Court was right when it held that there was no need for the police to conduct an identification parade for the P.W.1 and P.W.2 to identify the Appellant.
2. Whether there are contradictions and inconsistencies in the prosecution?s witnesses and the Appellant?s confessional statement (Exhibits A, A1 and F) which are fatal to the prosecution?s case.
3. Whether the trial Court was right in convicting and sentencing the Appellant for armed robbery and conspiracy to commit armed robbery.

ISSUE I

Whether the lower Court

was right when it held that there was no need for police to conduct an identification parade for the P.W.1 and P.W.2 to identify the Appellant?

It is trite that in any criminal trial, and especially in a charge of armed robbery it is cogent that an accused person must be pinned to the commission of the crime. This is done through identification evidence adduced by the prosecution from its witnesses which include the victim of the crime. A distinction must be made between recognition of an accused by a witness and identification of an accused by a witness. An accused is recognized by a witness if he points out the accused as the person who committed the crime without any aid in so doing. This occurs when an accused is well known to the witness prior to the criminal act for which he is charged and will usually be done by the mention of the accused name to the police. While identification of an accused is necessary when the accused is unknown to the witness prior to the commission of the crime. See IBANE VS. THE STATE (2012) LPELR) ? 9702 (CA) on the importance of identification in criminal trials and the duty of Court where same is in issue. The

Supreme Court in NDIDI VS. THE STATE (2007) 13 NWLR (PT. 1052) PG. 633 AT 651 ? 652 PARS E ? A held thus:
Generally in criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. More often than not, the controversy always rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It follows therefore that the identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any value to the evidence of an eye-witness re identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1) Circumstances in which the eye-witness saw the suspect or defendant.
2) The length of time the witness saw the subject or defendant.
3) The lighting conditions.
4) The opportunity for close observation.
5) The previous contacts between the two parties
Whenever the case of an accused person depends wholly (as in the instant case) or substantially on the correctness of

the identification of the accused or defendant which defence alleges to be mistaken, a trial judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance of the correctness of the identification.?

person before and his first acquaintance with him is during the commission of the offence;
ii) Where the victim was confronted by the offender for a very short time; and;
iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See R V TURNBULL (1976) 3 ALL ER 549 (1977) QB 224 AT 228; IKEMSON & ORS. VS. THE STATE (1989) 1 CLRN 1 (1989) 3 NWLR (PT. 110) 455?.
It follows therefore that the guiding principle for the conduct of an identification parade envisage circumstances where the accused is not known to the Complainant before the alleged commission of a crime and/or where it is impossible for him to recognize the accused after the commission of the crime due to the circumstances in which the crime was committed. An identification parade becomes necessary when there is real dispute about the identity of the accused person. In NDUKWE VS. THE STATE (2009) LPELR 1979 (SC) the Supreme Court held thus:
In summary, an identification parade is limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the

offence charged.

In the instant appeal, on the evidence as it relates to the identification of the Appellant, the lower Court at page 77 of the Record found as follows:
The accused and his cohorts also struggled with the P.W.2 who was driving the car for sometimes till the vehicle entered the ditch, the accused was arrested the next morning after the incident and it was that next day P.W.2 identified him. He gave evidence that the Accused shot the gun. I find that given the above circumstances, there was absolutely no need for the police to conduct an identification parade for the P.W.2 to identity the accused. With respect to P.W.1, while there is no doubt that the place of the commission of the incident was dark being 10pm at night, however the P.W.1 identified the Accused like P.W.2 as one who shot the gun. Between 10pm of the night of the incident and when the Accused was apprehended was only some hours interval and the P.W.1 never had difficulty in identifying the Accused as one of the assailants. The defence have not suggested anyone else committed the offence or had the opportunity to do so. The memory of who

assailed P.W.1’s memory was fresh in P.W.1?s memory. I find that this was not a case where the police ought to have conducted an identification parade for P.W.1 to identify the accused and I resolve issue one in favour of the prosecution?.

The lower Court went on at page 80 to hold as follows:
Corroborating all the evidence of P.W.1 and P.W.2 as to the identity of the assailants are the statements of the accused Exhibits A, A1 and F, where he himself identified himself as one of those who robbed P.W.1 and P.W.2. I agree with Mr. Manuwa, Prosecuting State Counsel that the accused identified himself by his confessional statement.?

On attitude of Appellate Court to finding of facts by a trial Court, the Supreme Court in AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400)287 AT 318, held thus:
An Appellate Court should be slow to disturb a finding of fact by a trial court which is supported by evidence unless it is satisfied that such finding is unsound?.
Also in the case of OKIEMUTE VS. THE STATE (2016) 15 NWLR (PT. 1535) 297 AT 335 ? 336 PARAS H- B, the Supreme Court held as follows:

?It is also clear that where a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence before it, an appellate Court will not interfere with such findings of fact. It is not the business of the appellate Court to substitute its own views of the facts for those of the trial Court. The duty of the Court is to scrutinize the evidence on record to find out whether there is evidence on which the trial Court could have acted?..?

I will now proceed to consider the evidence on record to determine whether the lower Court?s finding that P.W.1 and P.W.2 did not need an identification parade to identity the Appellant was based on the evidence before it.
In his examination in chief at page 36 of the record, P.W.1 stated inter alia:
. At the junction, we saw a man wearing a singlet and knickers and he had a handkerchief on his wrist called Baba Monday. He stopped our vehicle and we stopped only for me to hear a loud gun shot close to us. My brother-in-law tried to speed but four boys attacked us in the car, slapped and kicked

myself and my brother-in-law. They were struggling for control of the steering. This went on until the vehicle went into a bush. My bother-in-law escaped and two of the robbers ran after him. I was left with the other two robbers who ordered me to come down and they demanded all I had on me. I gave my Sagem Phone, N40,000 on me, Nokia Phone, driver’s license and car keys. They checked my boot then took my Access Card?..the next day, my brother in-law was trying to call the phone? I then called the number and one man who identified himself as Sgt. Biodun of llaro Police Station asked me about the robbery incident the day before and I gave him the details. Sgt. Abiodun asked if I can identify my assailants. I told him I knew Baba Monday very well who stopped our car so accused and others could rob us. I went to llaro Police Station and met Accused, Baba Monday and Baba Monday’s brother in-law and wife who terrorized us. Baba Monday brought the Accused to the area three days earlier to work in the poultry. The Accused admitted he was the one who shot the gun. I identified the Accused and others….”
?P.W.1 during cross examination at page 37 of

the record stated inter alia as follows:
There was no light in the night of the incident and I was terrified upon hearing the gun shot. I was not sure I was alive. I had not seen the accused before the day of the incident?.. the gun shot was heard very close to me, it was very close as I saw a red light. It is true in the day of the incident the accused was not arrested at the scene. I do not know who of the accused person took the money from me. I was not present when the accused was arrested by the police. It is true the police called me and showed the accused who was with Baba Monday as those they caught with my phone on them. One escaped.
What is clear from P.W.1?s evidence is that prior to the incident he had not seen the appellant before. Even though P.W.1 stated that the incident lasted for about fifteen minutes: His evidence is not that he saw the appellant for the whole fifteen minutes. It was also 10.30pm at night and according to him there was no light. He also testified that a particular group ran after P.W.2 while others stayed with him (P.W.1) to rob him. He further stated that he did

not know if the accused took money from him. P.W.1 did not show he had opportunity for close observation.
In the light of all of these, it is my view that the finding of the lower Court at page 78 of the record to the effect that P.W.1 never had difficulty in identifying the accused as one of the assailants and that the memory of who assailed him was fresh in his memory is not borne out of the record.
Be that as it may, it is significant to note that the issue under consideration is whether an identification parade was necessary in the circumstances of this case.
It is P.W.1?s evidence that at the police station, the police showed him the accused who was with Baba Monday as the person caught with his phone. (See page 37 of the Record). He identified the Appellant as someone he knew through Baba Monday Exhibits A, A1 and F are statements made by the accused. The said Exhibits which can be found at pages 8 -15 of the record are Confessional Statements credited to the Appellant. The said statements corroborate the evidence of P.W.1, P.W.2 and P.W.3 and P.W.4. The Confessional Statements which are corroborated by the evidence of other

prosecution witnesses including PW1 made it unnecessary for PW1 to be put through identification parade to identify the Appellant and I so hold.
The Supreme Court in the case of STATE VS. SALAWU (2011) 8 NWLR (PT. 1279) 580 AT 616 PARAGRAPHS B ? C held thus:
It is settled law that it is not in all criminal cases that an identification parade is necessary where there is good and cogent evidence linking the accused person to the crime on the day of the incident a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for further identification parade, identification is the means of establishing whether a person charged with the offence is the same person who committed the offence.?
The lower Court at page 80 of the record held thus:
. . . . corroborating all of the evidence of the PW1 and PW2 as to the identify of their assailants are the statements of the accused Exhibits A, A1 and F1 where he himself identified himself as one of those who robbed PW1 and PW2. I agree with Mr. Manuwa, prosecuting state counsel that the accused

identified himself by his Confessional Statement. . . . .?
As for PW2, he stated as follows during examination in chief inter alia:
“. . . I know the Accused. On 5/9/2008 at 10:30pm my aunt’s husband said I should come and pick him up at Obasanjo farm junction. I picked him up and on our way we got to the junction where we were to turn in to our street when I saw the accused point a gun in front of the vehicle we were in. I stopped seeing a gun. Another man came out of the bush and tried to dispossess me of the steering wheel. The engine of the car went off and I was dragged down. The accused fired a shot, I ran away. The accused robbed my brother in-law of money and a phone….”
PW2 under cross examination at page 39 of the Record stated inter alia thus:
“There was no electricity supply at the time the Accused attacked us….I know the Accused Akeem before the date of the incident. Yakubu was the security of the estate, it was Yakubu who brought the accused to also be a security guard, I never had any close encounter with the accused before then, I only knew him as an area security guard. The accused shot the gun while he was

beside our vehicle.. It is true when I heard the gun shot I was afraid and ran. The incident occurred within about fours minute duration?. At the time the accused accosted us he was wearing a black vest and the man who came out of the bush wore a white vest….It is true that there was no identification parade for me to identify the accused. I knew the accused before and I told the police so at Orubo. I had told my brother in-law the day of the incident I knew Baba Monday.”
During re-examination at page 39 of the Record, PW2 stated thus:
“It was the accused who tried to shoot on the day of the incident but it was Baba Monday who stopped our vehicle.”
Flowing from the above, the circumstances in which PW2 claim he saw the Appellant does not call for an identification parade. PW2 testified under cross-examination that he knew the Appellant Akeem before the day of the crime. He gave evidence of the circumstance he got to know him. He testified he informed the police that he knew him before the day of the incident. Even though PW2 testified that the incident lasted for about four minutes, if the Appellant shot a gun during

the incident, he seems well positioned to have recognized him during the period.
Having recourse to the entire circumstance of this case, it is my firm view that it was not necessary to put PW1 and PW2 through an identification parade to identify the Appellant. The lower Court was therefore right when it held as such. This case is not one of those cases that require an identification parade.
Issue No. 1 is thus resolved against the Appellant.

ISSUE NO. 2
Whether there are contradictions and inconsistencies in the prosecution witnesses and the Appellants Confessional Statement (Exhibits A, A1 and F) which are fatal to the prosecution case.

It is trite that where a contradiction in the prosecution?s case affects the substance of a fact or facts in issue in the charge a doubt can be created in the mind of the Court. In other words it is not every contradiction that will render the testimony of a witness unreliable. The Supreme Court in the case of ODUNEYE VS. THE STATE (2001) 2 NWLR (PT. 697) PAGE 311 AT 330 PARAGRAPH G – H held thus:
On the contrary, it has long been laid down by a long claim of authorities

that not every contradiction is fatal to the prosecution’s case save where such contradiction goes to the substances and materiality of a fact or facts in issue in the charge to raise doubt in the mind of the Court. . . .
See also EROMOSELE VS. FEDERAL REPUBLIC OF NIGERIA (2017) 1 NWLR (PT. 1545) 55 AT 101 ? 102 PARAGRAPHS F ? C.

Learned Appellants Counsel in paragraphs 5.4-5.6 of the Appellants Brief submitted that there is a contradiction in the testimony of PW4 and the proof of evidence. He stated that while Exhibit F (Appellants Confessional Statement was being tendered at the lower Court. P.W.4 (Inspector Isiaka Abaniwonda) had stated that the Appellant volunteered his statement dated 19th September, 2008 in Yoruba language and thumb printed same and that he (PW4) interpreted same in English language but the recorder could not countersign because they were called for an urgent assignment. He further testified that it was an oversight that they did not sign Exhibit F. See page 51 of the record.

Furthermore, learned Appellants counsel at paragraph 5.7 of the Appellants brief submitted that from the

testimony of P.W.1 and P.W.2 it is clear that there is a serious doubt as regards who stopped the vehicle and that this contradiction is not a minor one especially when the identity of the Appellant is in issue.

He submitted further in paragraph 5.9 of the Appellant?s Brief that the testimonies of P.W.1 and P.W.2 and the contradictions and inconsistencies when put together with the testimony of P.W.4 cast a serious doubt on the participation of the Appellant in the robbery incident. He posed a question as follows:
In view of this, which should the Appellate Court believe, that the statement was volunteered in English, even when the charge was read to the accused in Yoruba from the record of the Court? Or that the statement was volunteered in Yoruba when PW4 said, in the proof of Evidence that it was recorded in English

In response learned counsel to the Respondent in the Respondent’s Brief of Argument submitted that the fact of who stopped the vehicle on the day of the robbery is not an ingredient of the offences for which the Appellant stood trial. He urged us to hold that whether it was the Appellant or Baba

Monday that stopped the vehicle is of no moment in the circumstances of this case. He submitted further that proof of evidence is a mere guide and not evidence. He finally submitted on this point that there are no material contradictions in the evidence of the prosecution and urged us to so hold.

The first point for consideration on the arguments of Appellant’s Counsel under this issue is whether proof of evidence serves as a judicially acceptable testimony or evidence in proof of a crime in the Court.
In FEDERAL REPUBLIC OF NIGERIA VS. WABARA & ORS. (2013) LPELR 20083 (SC), the Supreme Court held as follows:
…Proofs of evidence are not the same as the statements of the witnesses the Appellant would call at the trial. Proofs of evidence are summaries of the statements of those witnesses to be called at trial by the Appellant. It is for that reason that the rules require an affirmation from the applicant that the evidence against the Respondents as summarized in the proofs of evidence prepared by the Appellant will be the evidence against the Respondent in respect of whose trial the Court is urged to grant the leave

to proffer a charge.
See also IDAGU VS. THE STATE (2018) LPELR ? 44343 (SC).
It follows that proof of evidence or summary of evidence cannot take the place of actual evidence given in Court. Statements of complaints or witnesses in a proof of evidence are not judicial evidence or legal evidence. The testimony of PW4 before the Court is that the Appellant volunteered his statement in Yoruba and thumb printed same. The proof of evidence or summary of evidence which Counsel submitted is inconsistent was not signed by P.W.4. It is also to be noted that the charge was read to the Appellant in Yoruba Language. I find the submission of Appellant Counsel on the contradiction in the testimony of PW4 and the proof of evidence to be of no moment.

Now to the alleged contradiction in the evidence of PW1 and PW2 with respect to the person who stopped the vehicle. In GOLDEN DIBIE & ORS. VS. THE STATE (2007) LPELR ? 941 (SC), the Supreme Court held as follows:
It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an

important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are equally expected in an unconnected evidence given from human memory. They are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that happened. There is therefore bound to be minor discrepancies in an account of the same event given by different eye-witnesses. Such could only not exists where such witnesses are schooled as to what to say.?
The element of the crime of armed robbery for which the Appellant stood trial are as follows:
(1) That there was an armed robbery
(2) That the accused was armed in company with any person so armed
(3) That the accused while with arm or arms or in company with person so armed, participated in the robbery.? Contradictions on the language the 3rd Confessional Statement was made and on whether the statement was signed do not touch on any of the elements of the offence of armed robbery. Furthermore, contradictions on who stopped the complainant?s vehicle or who shot the gun, whether it

was the Appellant or Baba Monday and the number of persons who robbed PW1 and PW2 are not fatal to the prosecution?s case. The important thing is that there are no contradictions and inconsistencies in the evidence of prosecution witnesses and the Appellant?s Confessional Statements, on issues fatal to the prosecution?s case and I so hold.
Issue No. 2 is thus resolved against the Appellant.

ISSUE NO. 3
Whether the trial Court was right in convicting and sentencing the Appellant for Armed Robbery and conspiracy to commit armed robbery?

484 PARAGRAPH H.

The lower Court in its judgment held at page 80 of the record as follows:
…Corroborating all of the evidence of PW1 and PW2 as to the identity of their assailants are the statements of the accused, Exhibit A, A1 and F1 where he himself identified himself as one of those who robbed PW1 and PW2. I agree with Mr. Manuwa, prosecuting counsel that the accused identified himself by his Confessional Statement…

It is clear from the evidence of the prosecuting witnesses that there was a robbery. What is left to be determined is whether it was an armed robbery and whether there is evidence that the Appellant took part in same. In doing so, there is the need to examine the Confessional Statements of the Appellants, eye witness accounts and the circumstantial evidence as contained in the record.

The law is trite that the prosecution may rely on a Confessional Statement of an accused person to prove a crime. However it must be proved that such statement is positive, unequivocal and amounts to an admission of guilt and was made voluntarily. Where it has been proved and established that the confession

was made voluntarily, positive and it is unequivocal, such will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom at the trial.
In FRN VS. BARMINAS (2017)15 NWLR (PT. 1588) PG. 177 AT 199 PARAS B ? D, the Supreme Court held thus:
?The principle of law that a confessional statement could be relied upon solely to convict an accused person is informed by the fact that the strongest evidence establishing the guilt of an accused person is his own confession and personal evidence…
…There is no evidence stronger than a persons own admission or confession. The law on this is quite settled as can be seen from the line of cases.?

In the instant case, the prosecution tendered three confessional statements which were all admitted in evidence as Exhibits A, A1 and F respectively.

During the trial, the Appellant objected to the admissibility of Exhibits A and A1 on the ground that they were not made voluntarily. The ground of objection to Exhibit F was that it was not signed and the witness through whom the statement is sought to be

tendered is not the maker and also that the interpreted version of the statement was not produced. The trial Court overruled the objection on the ground that it did not go to the root of admissibility. It treated all objections to the confessional statements as a retraction of the confessional statement and applied the principles of law on the admissibility of retracted confessional statement to admit all of them.

The Court at page 83 of the Record found thus:
I find that the statements of the Accused Exhibits A, A1 and F are well corroborated with facts outside the confessions themselves and this has passed the tests required in the law as earlier enumerated. I find that the offence of Armed Robbery is proved against the Accused person and I convict the Accused on it.?

It is clear that the decision of the trial Court is not based solely on the confessional statements of the Appellant. The Court found and rightly too that the statements of the Appellant is corroborated by evidence of other prosecution witnesses. From the record, I find that the confessional statements of the Appellant are corroborated by the testimonies of P.W.

1, P.W.2, P.W.3 and P.W.4. The evidence of P.W.1 and P.W.2 are eye-witness accounts.

The trial Court at page 81 of the record held thus:
Accused defence is full of balderdash, a bogus story calculated to deceive the Court, a ruse, I refuse to be deceived. He has, I restate not accounted for how his personal details like the name of his mother got to be known and be in his statement to the police if he did not make the statements credited to him. I disbelief his defence and reject it.?

I find no reason to depart from the above finding of the lower Court for the simple reason that it is supported by the evidence on record.
On the offence of conspiracy to commit armed robbery, the lower Court held at page 84 of the Record thus:
On the count of Conspiracy to commit Armed Robbery, I adopt my very consideration earlier made in respect of the count for Armed Robbery. Since the facts in proof of both offences as presented by the prosecution are intricately interwoven hence, I find the Accused guilty also on the count for Conspiracy to commit Armed Robbery and I convict him on it accordingly.

I also have no reason to depart from the finding of the lower Court with respect to the offence of Conspiracy to commit murder for the same reason that the facts surrounding both charges are woven. The confessional statements of the Appellant as well as the evidence of P.W.1 and P.W.2 clearly detail direct evidence of how the Conspiracy came about. The evidence proffered by the prosecution at the lower Court includes direct eye witness account of the incident by P.W.1 and P.W.2. The prosecution also presented confessional statements of the Appellant which was corroborated by evidence of other witnesses. The Appellant admitted committing the offence in the statements.

From the totality of the evidence before the lower Court, the confession of the Appellant is possible and consistent with the evidence of P.W.1 and P.W.2. There is evidence on record that there was a robbery, and that the Appellant took part in the robbery. There is also evidence that the robbers were armed.

It is therefore my firm view that the lower Court was right in holding that all the ingredients of the offence for which the Appellant was charged have been proved beyond reasonable doubt.

ISSUE NO.3 is also resolved against the Appellant.
Having resolved all issues against the Appellant, I find this appeal unmeritorious and it is accordingly dismissed. I affirm the judgment and sentence of the lower Court in SUIT NO: HCT/4R/2012 delivered on the 12th of December 2017.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead Judgment of my Lord, FOLASADE AYODEJI OJO, JCA, just delivered. I agree with and adopt my Lord’s reasoning and conclusion.

I have also perused the records of appeal and the briefs of argument filed and exchanged by the parties, my conclusion is also that the appeal lacks merit and it is dismissed by me.
I abide by the consequential orders made in the said lead Judgment.

NONYEREM OKORONKWO, J.C.A.: In the lead judgment of my Lord Folasade Ayodeji Ojo, JCA, the following passage appeared:
PW1 was dispossessed of his phones, the sum of N40000:00, his Access Card as well as his car keys. The following morning PW1 called his phone. PW3 a policeman answered the call and informed him that the Appellant and others who robbed them have

been apprehended. PW3 to/d him the phone rang in the pocket of one of the robbers who were already with the police when he (PW1) called.
THE Appellant denied the charge.
The trial Court accepted that evidence. In the Evidence Act Cap 14 2011, it is enacted that:
“A man who is in Possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”
Idowu Salami v. The State (1977-1988) 2 SCJE page 798 at 802; Sunday Madagwa v. The State (1977-1988) 2 SCJE page 967 at 992.
The trial Judge was entitled on the facts to presume that he is the thief or the receiver. Appellant is not shown to have satisfactorily accounted for his possession after he was arrested.
I agree with the conclusion reached in the lead judgment.

Appearances:

TAIRU ADEBAYO, ESQ.For Appellant(s)

ADEKUNLE MANUWA, ESQ. PRINCIPAL STATE COUNSEL, OGUN STATE MINISTRY OF JUSTICEFor Respondent(s)

Appearances

TAIRU ADEBAYO, ESQ.For Appellant

AND

ADEKUNLE MANUWA, ESQ. PRINCIPAL STATE COUNSEL, OGUN STATE MINISTRY OF JUSTICEFor Respondent