ABIODUN ADEKOYA v. THE STATE (2010)

ABIODUN ADEKOYA v. THE STATE

(2010)LCN/4044(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of November, 2010

CA/I/75/09

RATIO

BURDEN OF PROOF: WHETHER THE PROSECUTION IN A CRIMINAL TRIAL ,HAS A DUTY TO PROVE ALL AND NOT MERELY SOME OF THE INGREDIENTS OF THE OFFENCE CHARGED BEYOND REASONABLE DOUBT

PROOF BEYOND REASONABLE DOUBT: MEANING OF THE PHRASE “PROOF BEYOND REASONABLE DOUBT”; HOW A PROSECUTION WILL PROVE ITS CASE BEYOND REASONABLE DOUBT

“Proof beyond reasonable doubt” however does not mean “proof beyond all the shadows of doubt.” The prosecution is therefore required to produce a possible and credible evidence which may be direct or if circumstantial, it must be of such quality or cogency that a Court could safely rely on it arriving at its decision. See the cases of ALONGE vs. I.G.P. (1956) S.C.N.L.R at 516; EGBE VS. KING (1950) 13 W.A.C.A. at 105; MBENU VS. THE STATE (1988) 3 N.W.L.R. Part 84 at 615 and ADETOLA VS. THE STATE (1992) 4 N.W.L.R Part 235 at 267. PER MODUPE FASANMI, J.C.A.

OFFENCE OF ARMED ROBBERY: ELEMENTS OF THE OFFENCE OF ARMED ROBBERY THE PROSECUTION IS REQUIRED TO PROVE BEYOND REASONABLE DOUBT AGAINST THE ACCUSED

In the instant case, being an armed robbery case, the prosecution is required to prove the following beyond reasonable against the accused i.e the Appellant namely: (i) That there was a robbery (ii) That the robbery was an armed robbery (iii) That the accused person was the armed robber or one of the armed robbers. See the cases of BOZIN vs. THE STATE (1985) 2 N.W.L.R part 8 page 455 at 469; ALABI VS. THE STATE (1993) 7 N.W.L.R part 307 at page 5, and OLAYINKA VS.THE STATE (2007) 4 S.C.N.J page 53 at 72. PER MODUPE FASANMI, J.C.A.

DUTY OF THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED PERSON BEYOND REASONABLE DOUBT

The Supreme Court per Onu J.S.C in the case of NWEKE VS. THE STATE) (supra) at Pages 602-603 referred with approval to the decisions in the cases of IKOKU VS. OLI (1962) 1 ALL N.L.R. at 194 and NWANKWERE VS. ADEWUNMI (1966) 1 S.C.N.L.R. at 356 held as follows: “…Section 137(1) of the Evidence Act. This section was interpreted …. proof therefore must be consistent with: “active participation in the commission of the crime … Be it noted that if only culpatory evidence of participation in a crime is given and which is equally open to an interpretation consistent with innocence, it must be construed in appellant’s favour. In a criminal trial, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt …” PER MODUPE FASANMI, J.C.A.

FACTORS THE TRIAL MUST TAKE INTO CONSIDERATION IN ASCRIBING ANY VALUE TO THE EVIDENCE OF AN EYEWITNESS WITH RESPECT TO THE IDENTIFICATION OF A CRIMINAL

In ascribing any value to the evidence of an eyewitness regarding identification of a criminal, the Courts must consider the following issues as laid down in the case of NDIDI VS. THE STATE (2007) 13 N.W.L.R. page 633 at 651. (i) Circumstances in which the eyewitnesses saw the suspect (ii) The length of time the witness saw the suspect (iii) The light condition of the scene
(iv) The opportunity of close observation (v) The previous contacts between the parties. See also THE STATE VS. SALISU & ANOR (1974) 4 N.W.L.R. page 400 at 404-405. PER MODUPE FASANMI, J.C.A.

JUSTICES:

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

ABIODUN ADEKOYA – Appellant(s)

AND

THE STATE – Respondent(s)

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court of Justice, Ijebu Ode Judicial Division, delivered by Hon. Justice N. I. Agbelu on 14th July, 2008. The Appellant was charged, arraigned and tried on a two count charge of conspiracy to commit Armed Robbery and armed robbery contrary to Section 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act Laws of the Federation of Nigeria,2004.
The brief facts of the case as presented by the prosecution witnesses are that on 11th of February, 2005 at about 2.00 p.m, two armed robbers attacked Mrs. Cecelia Olufunke Onanuga and her two daughters in their residence at 176, Luba Eruwon Road, Ijebu-Ode. During the robbery incident, a sum of N39,000,00, three Nokia handsets, a Sagem My X5 handset and a still photograph camera were stolen from them. Precisely three days after the incident, the Appellant was sighted at Oke-Aje market by P.W.4 one of the victims of the robbery and he (Appellant) was consequently arrested. A case of conspiracy to commit armed robbery and armed robbery was incidented against the Appellant. The prosecution called six witnesses at the trial and tendered eight exhibits. Appellant gave evidence on his own behalf and called no other witness. This led to his trial and he was subsequently convicted for the offences of conspiracy to commit armed robbery and armed robbery.
It is against the judgment, conviction and sentence that the Appellant Abiodun Adekoya appealed to this Court and filed a notice of appeal dated 17th July 2008.
Pursuant to the order of this Court, the Appellant’s amended notice of appeal containing one ground of appeal was filed on the 8th of June 2009. In compliance with the rules of this Court, parties exchanged their briefs. Appellant’s brief was filed on the 2nd of November, 2009 whilst the Respondent’s brief of argument was filed on the 9th of February 2010 but deemed properly filed and served on the 29th of March, 2010.
From the sole ground of appeal contained in the amended notice of appeal, two issues are distilled on behalf of the Appellant for the determination of this appeal and they read as follows:
(1) Whether the prosecution established all the ingredients of the offence of armed robbery in this case and
(2) Whether the learned trial Judge was right in holding that the prosecution proved a case of Conspiracy and armed robbery against the Appellant beyond reasonable doubt.
The Respondent adopts the two issues formulated by the Appellant in his brief of argument as slightly amended thus:
Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with Section 138 of the Evidence Act Laws of the Federation of Nigeria, 2004.
The issues formulated by both parties are identical but I shall adopt the sole issue as amended formulated by the Respondent for the determination of this appeal. The amended issue goes thus:
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 138 of the Evidence Act, Laws of the Federation of Nigeria, 2004.
Learned counsel for the Appellant submitted that in proof of criminal charges, the prosecution must successfully establish the intention of the Appellant to commit the wrongful act and the wrongful act itself, Learned Counsel placed reliance on the case of BABALOLA VS. THE STATE (1989) 4 N.W.L.R Part 115 page 264 at 292 where the Apex Court per the learned jurist Oputa J.S.C had this to say:
“In dealing with statutory offences therefore great care should be taken to analyze the elements required by the particular statute to constitute the offence it creates. Each statutory offence implies a course which it is the policy of the law to prohibit under pain of punishment. This course of conduct may then constitute that actus reus of the offence charged. It is however not in all cases that the statute prescribes a mens rea. There are cases of absolute prohibition. But when a mental element becomes an essential ingredient of a statutory offence, words like “with intent to ‘knowingly” “fraudulently” etc are used”
“It is not necessary here to go into the remote history of mens rea except to say that in common law offences, there are always present two essential elements:- (a) a guilty conduct and (b) a mind at fault’ It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea” Probably from there, the legalists got the now popular latin maxim – actus non facit reum mens sit rea. No man, (including the 1st Appellant) should according to this maxim be convicted- of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element, a mind at fault, a mens rea. The intent and the act must both concur to constitute the crime:- FOWLER VS PODGET (1797) 7 T.R. Page 509 at 514 and as Stephen J. observed in R v. TOLSON (1889) 23 Q.B.D. 168 at page 187:- “The full definition of every crime contains expressly or by implication a proposition as to the state of mind'”
Learned counsel submitted that the Respondent to succeed in the charge against the Appellant must prove that there was robbery, that the said robbery was armed robbery and that the Appellant was the robber. He contended that the Respondent failed to establish or prove either of the three ingredients set out by the Supreme Court in the case of ALABI VS. THE STATE (1993) 7 N.W.L.R Part 307 page 511 at 523 paras F-H.
Learned Counsel for the Appellant submitted further that the learned trial Judge misdirected himself and wrongly evaluated the evidence of P.W.1 & P.W.4 in the absence of any other shred of corroborating evidence particularly in the face of the statements continually repeated by the Appellant that Sakiru had gone to P.W.1’s residence to collect a debt owed to him. The possibility that a fight ensued over the debt was a defence made at the earliest stage but there is no evidence that it was ever investigated by the Police. Appellant stated further that he specifically mentioned the names of people he had interactions with after the incident and shortly before his arrest, Learned Counsel submitted that the Appellant put forward a defence justifying his presence at the scene of crime and stating contrary to the testimony of P.W.1 and P.W.4 that it was an attempt by Sakiru to collect a debt owed to him that went bad as a result of the ensuing altercation. He contended further that the report to the Police after the sighting and arrest of the Appellant and the testimony of P.W.1 and P.W.4 in Court were carefully crafted to exact vengeance on the Appellant, possibly for his association with Sakiru for the alteration of the 11th of February, 2006.
According to Counsel the learned trial Judge ought to have been more circumspect and ought to have evaluated the evidence of P.W1 & P.W.4 and to have treated same as the evidence of tainted witnesses. He urged the Court to dismiss the testimony of P.W.2 and P.W.4 of a telephone call during the course of an armed robbery not perhaps whilst the robbers were trying to gain entrance or perhaps when the robbers were seen outside as blatant exaggeration. The presence of the Appellant at the scene of crime does not prove that he committed the crime or participated in the crime or abetted the crime in anyway. Learned Counsel relied on the case of DANIELS VS. STATE (1991) 8 N.W.L.R. Part 212 page 715 at 732 paragraphs D-E that:-
715 at 732 paragraphs D-E that:-
“It is not the law that an accused person should be convicted because the Court regarded him as a liar or because he was seen running away from the scene of the commission of the crime with weapon. What the Court should consider is whether the prosecution has proved its case beyond reasonable doubt against the accused.”
Learned Counsel submitted that there was conflicting evidence and testimony before the learned trial Judge as to the events that occurred on the 11th of February 2006. Whilst P.W.1 and P.W.4 alleged that the Appellant attacked P.W.1, Appellant alleged that he was at the scene for different reason and that it was Sakiru that attacked P.W.1. Learned Counsel contended that exhibit D the cutlass/matchet) that was allegedly used in the attack on P.W.1, whilst exhibits E and F are the face cap and T-shirt allegedly used by the robber are generic items and without specific proof of the ownership of those items by someone who knew the owner or had on previous occasion seen the owner wear those items, it will be difficult for any Court to reach a conclusion on the ownership or use of those items. Counsel urged the Court to find and hold that the Respondent did not put before the Court sufficient evidence to properly link exhibits E and F with the Appellant. Learned Counsel contended that the Respondent ought to have conducted a forensic analysis of exhibit D to determine if the Appellant actually wielded it at any time in the commission of the crime i.e if his finger prints were actually on Exhibit D. He argued further that there is nowhere in the extra-judicial statements of the Appellant where he admitted participating in a robbery or being the armed robber. The tagging of the Appellant’s statements i.e exhibits H, A and B as confessional by the Police and the Respondent does not automatically make them confessional and the finding of the learned trial Judge in that regard are perverse. Appellant never said anything remotely close to the contents of exhibit C in his previous statements and in his testimony on oath. Learned Counsel urged the Court to treat exhibit C as completely unreliable. He placed reliance on the cases of R VS. SYKES (1913) 18CR. App at page 233; KANU vs. R 14 W.A.C.A at 30 and DAWA VS. STATE (1980) 8-11 S.C at 236.
Learned Counsel for the Appellant submitted that the learned trial Judge erred in law in holding that the Respondent proved its case against the Appellant beyond reasonable doubt when it failed completely to establish the ingredients of the crime alleged against the Appellant.
On the count of conspiracy, learned Counsel submitted that the proof of the offence of conspiracy is most often inferred from the proof of the main offence. According to him, the only evidence before the Court is that the Appellant agreed with another (Sakiru – now at large) to go to his (Sakiru’s) customer’s place to collect a debt owed to Sakiru. He contended that there is nothing in the evidence placed before the Court by the Respondent from which it can be inferred that the Appellant had any mutual or common purpose with Sakiru which could be inferred from the events that occurred when they arrived at P.W.1’s residence. The burden placed on the prosecution is not discharged until the guilt of an accused person is properly established. He referred to the cases of IDEMUDIA VS. STATE (1999) 7 N.W.L.R Part 610 page 202 at 215 paras F-G and ESANGBEDO VS. STATE (1989) 4 N.W.L.R Part 113 at 57.
Learned Counsel finally urged the Court to hold that the Respondent failed to discharge the burden of proof placed on them by law. He urged the Court to allow the appeal and thereupon enter a verdict of discharged and acquitted in favour of the Appellant.
In his response, learned Counsel for the Respondent submitted that in proving the charges against the Appellant, the Respondent adduced evidence through witnesses and also tendered six exhibits. The evidence adduced at the trial of the Appellant revealed that there was an armed robbery on the 11th of February 2005 at 176 Luba – Eruwon Road, Ijebu-Ode. It is clear from the evidence of P.W1, P.W2 and P.W4 that the robbers that invaded their home were armed with gun and cutlass. He submitted further that there is overwhelming evidence to prove that the Appellant was one of the armed robbers that robbed P.W1 and the children on 11th day of February 2005. P.W.1 and P.W4 in their respective evidence stated in clear terms the specific roles played by the Appellant in the armed robbery incident. He submitted that P.W.1 and P.W.4 are not tainted witnesses. P.W4 gave evidence on oath and was subjected to rigorous cross-examination by the defence and his evidence was unshaken or contradicted in any form.
Learned Counsel for the Respondent contended that Appellant put up a defence of justification of his presence at the scene of crime. He submitted that there is no such defence before the Court. The Appellant through his Counsel failed to cross-examine P.W.1 and P.W.4 on the issue of recovery of debt and non-involvement of the Appellant in the armed robbery. Appellant testified before the trial Court that the people mentioned by him in his defence were still living in Ijebu-Ode at the time of making his defence but he failed to call them to testify. The implication of this is that the evidence of those people would be unfavourable to him. He argued further that there was no recording of the events hence the Respondent did not tender the video clip of the events of 11th February 2005 at the scene. He submitted that the trial Court was therefore right when it held that the story of a video clip was a ploy on the part of the Appellant to hook wink the Court. Learned Counsel submitted further that failure of the Respondent to conduct forensic analysis of Exhibit D is not fatal to the Respondent’s case.
He urged this Court to hold that there is credible evidence before the Court that the Appellant and his partner formed an agreement to carry out the armed robbery operation.
In conclusion he urged the Court to hold that the Respondent had proved the offences against the Appellant beyond reasonable doubt as required by law. The appeal lacks merit and should be dismissed.
Learned Appellant’s Counsel reply on point of law submitted that it is the duty of the Respondent to disprove the Appellant’s defence of justification of his presence at the scene of crime. The Respondent is not relieved of its duty imposed by law to establish that the Appellant committed the crime. The submission of the Respondent placing the burden of proving innocence on the Appellant is contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999 is of no moment and is bound to fail. He referred the Court to the case of ADUN VS. OSUNDE (2003) 16 N.W.L.R Part 847 at 543 that:-
“Where an alleged crime has not been proved beyond reasonable doubt, any lingering doubt must be resolved in favour of the accused person.
Learned Counsel urged the Court to find in favour of the Appellant, set aside the conviction and sentence of the learned trial Court and enter a verdict of discharged and acquitted in his favour.

It is trite that in criminal trials, the prosecution i.e the Respondent in this appeal has the duty which is an unshifting burden to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. If there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See the cases of NWEKE VS. THE STATE (2001) 4 N.W.L.R Part 704; OMOGOGO VS. THE STATE (1981) 5 S.C.L.N.R at page 5; OWE VS. THE QUEEN (1961) 2 S.C.L.N.R at page 354 and HASSAN VS. (2001) 15 N.W.L.R Part 735 at 184 and Section 138 (1) of the Evidence Act which provides that whenever the commission of a crime by a party or person is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt “Proof beyond reasonable doubt” however does not mean “proof beyond all the shadows of doubt.” The prosecution is therefore required to produce a possible and credible evidence which may be direct or if circumstantial, it must be of such quality or cogency that a Court could safely rely on it arriving at its decision. See the cases of ALONGE vs. I.G.P. (1956) S.C.N.L.R at 516; EGBE VS. KING (1950) 13 W.A.C.A. at 105; MBENU VS. THE STATE (1988) 3 N.W.L.R. Part 84 at 615 and ADETOLA VS. THE STATE (1992) 4 N.W.L.R Part 235 at 267.

In the instant case, being an armed robbery case, the prosecution is required to prove the following beyond reasonable against the accused i.e the Appellant namely:
(i) That there was a robbery
(ii) That the robbery was an armed robbery
(iii) That the accused person was the armed robber or one of the armed robbers.
See the cases of BOZIN vs. THE STATE (1985) 2 N.W.L.R part 8 page 455 at 469; ALABI VS. THE STATE (1993) 7 N.W.L.R part 307 at page 5, and OLAYINKA VS.THE STATE (2007) 4 S.C.N.J page 53 at 72.

The evidence adduced at the trial of the Appellant revealed that P.W.1 and P.W.4 were victims of the armed robbery which took place in their residence at 176, Luba Eruwon Road, Ijebu-ode on the 11th of February 2005 at about 2.00p.m. Both witnesses testified as to how two armed men attacked them. At page 23 lines 25-28, P.W.1 had this to say:
“While still in the sitting room, I saw the accused and one other. The accused was holding a cutlass white the other one was with
a gun. I shouted on seeing them. However the accused matcheted me on my head.”
P.W.4 at page 30 lines 10 – 18 had this to say:-
“Myself and my sister were in the dining room and we heard the shout of our mother. Immediately, both of us went to the sitting-room and we saw two boys. These two boys were armed robbers. One of them was short while the other was tall person. The short boy was holding a gun while the tall boy was holding a cutlass. The tail boy cut my mother with the cutlass he was holding on her head. The accused was the tall boy holding the cutlass.”
It is clear from the evidence of P.W.1. and P.W.4 that the robbers who robbed them in their residence were armed with gun and cutlass. I consider their evidence to the cogent, unequivocal and conclusive that they pointed undoubtedly to the Appellant as the person who in company of another armed with offensive weapon attacked and robbed P.W.1.
The Supreme Court per Onu J.S.C in the case of NWEKE VS. THE STATE) (supra) at Pages 602-603 referred with approval to the decisions in the cases of IKOKU VS. OLI (1962) 1 ALL N.L.R. at 194 and NWANKWERE VS. ADEWUNMI (1966) 1 S.C.N.L.R. at 356 held as follows:
“…Section 137(1) of the Evidence Act. This section was interpreted …. proof therefore must be consistent with:
“active participation in the commission of the crime … Be it noted that if only culpatory evidence of participation in a crime is given and which is equally open to an interpretation consistent with innocence, it must be construed in appellant’s favour. In a criminal trial, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt …”
The learned trial Judge was right in accepting the evidence of P.W.1, P.W.2 and P.W4 in holding that the robbery that happened at No. 176 Luba-Eruwon Road, Ijebu-Ode actually took place and that at the time of the said robbery, the robbers were armed with firearm and dangerous weapons to wit: gun and cutlass. The prosecution has therefore proved two of the essential ingredients of the offence of armed robbery beyond reasonable doubt.
On the issue of whether the Appellant was one of the robbers who attacked the residence of P.W.1 on 11/2/2005, the available evidence linking the appellant with the robbery is the identification evidence given by the P.W.1 and P.W.4 who were the victims of the armed robbery. P.W.1 testified that the accused i.e the Appellant matcheted her on the head and ordered her two daughters to go into the dining room while the accused collected some money and handsets from her oldest daughter, The accused who was masked with a head scarf taken from the compound later gripped her on the neck and was dragging her to the bedroom during which she was able to remove the scarf and also went to her husband’s bedroom where he took a sum of N39,000.00. Under cross-examination she stated thus:
“Although, I fell down after the matchet cut on my head, I was still conscious. The accused partner was the one who ransacked my bedroom while the accused went to my husband bedroom. However, the accused partner did not attack me during the incident.”
From the evidence given, P.W1 had enough opportunity to identify the Appellant from the interaction she had with him. At page 68 lines 28- 33 of the record, the learned trial Judge rightly held as follows:

“I believe her evidence more importantly as to the actual person between the accused and his partner who wounded her and who went to her husband’s bedroom (P.W’2) and remove a sum of N39,000.00 therein. Her evidence is credible and cogent. I find and hold that the accused was one of the two hoodlums that participated in the robbery attack at P.W1’s residence on 11/2/2005.”
P.W.4 gave a more damning evidence of identification against the accused in her testimony before the Court. It is against this background that her evidence would be reproduced in extenso. She told the Court as follows:
“Myself and my sister were in the dining room and we heard the shout of our mother. Immediately, both of us went to the sitting room and we saw two boys —– One of them was short while the other was a tall person. The short was holding a gun while the tall boy was holding a cutlass. The tall boy cut my mother with the cutlass he was holding on her head. The accused was the tall boy holding the cutlass and told us to go into our mother’s room. He led us to her room. By this time, the accused was in the sitting room and we heard our mother shouting hence both of us went back to the sitting room. On getting there, we saw the accused holding the neck of our mother she removed the scarf which the accused used as a mask. It was at this stage that I was able to see his face and the shape of his head. We pleaded with him but he dragged my mother into her room and both of us followed. The following Sunday which was 13/2/2005 while we were coming back from the church, I saw the accused at Iwade in Oke-Aje Market, Ijebu-Ode. He was eating and I told my father that one of the boys that robbed us was the one eating. The accused was wearing the same clothes he put on when they came to our house on Friday. It was a short knicker with a T-shirt with red and black colour…. My father stopped Mr Ayankoya and told him my story regarding the identification of the accused at Oke-Aje. Mr. Ayankoya followed us back to Oke-Aje Market in his own car. At Oke-Aje Market, the accused was seen in front of a pool house and I pointed him to Mr. Ayankoya.”
Under Cross-examination she had this to say:
“I saw the accused when he cut my mother’s head with a cutlass he was holding. The incident took about one and a half hours, the incident was not hurriedly done …. I identified the accused by his face and the shape of his head I made statement to the Police when the robbery took place.”
In ascribing any value to the evidence of an eyewitness regarding identification of a criminal, the Courts must consider the following issues as laid down in the case of NDIDI VS. THE STATE (2007) 13 N.W.L.R. page 633 at 651.
(i) Circumstances in which the eyewitnesses saw the suspect
(ii) The length of time the witness saw the suspect
(iii) The light condition of the scene
(iv) The opportunity of close observation
(v) The previous contacts between the parties. See also THE STATE VS. SALISU & ANOR (1974) 4 N.W.L.R. page 400 at 404-405.
In view of the circumstances of this case with regard to the evidence of P.W.1 and P.W.4 in particular, I do not think there was any need or necessity to conduct on identification parade. The evidence is overwhelming and cogent enough to show that the Appellant was one of the armed robbers that robbed P.W1 at her residence on 11/2/2005. See also the cases of ANYANWU VS. THE STATE (1986) 5 N.W.L.R. Part 43 at 612; IGBI VS. THE STATE (2000) 3 N.W.L.R. Part 648 at 169 and NWACHUKWU VS. A.G. IMO STATE (2003) 6 N.W.L.R. Pat 816 at 218.

The defence of the Appellant that he followed one Sakiru to P.W.1’s residence to collect a debt owed to him and that altercation took place between P.W.1 and one Sakiru who remains at large is of no moment. The offence was committed in broad daylight P.W.4 said she saw his face and the shape of his head when her mother removed his mask. The time lag which the accused and the partner spent with both P.W.1 and P.W.4 was over one and a half hours. She described the mode of dressing of the accused on the day of the incident and that he put up the same clothes when she identified him at Oke-Aje market. P.W4 gave a vivid account of how the Appellant robbed on the day in question. I find and hold that there can be no mistaken identity of the Appellant by P.W.4.
On the submission of the Appellant Counsel that P.W.4 should be treated as a tainted witness, and be more circumspect. There is no doubt that P.W4 is a 13 year old school girl of tender age. Before her testimony, the Court put some questions to her as to the implication of giving false evidence on oath, her educational back ground, why she was in Court and the nature of the offence with which the Appellant was charged. She gave rational answers to them before she testified on oath. See page 29 of the record. It was after this that the Court remarked thus:
“She is an intelligent school girl. I am therefore satisfied that her evidence is credible and cogent which can be relied upon by the Court.” What is more the identification evidence of the Appellant was neither controverted nor shaken under cross-examination.
In the instant case, P.W.4 spontaneously identified the Appellant three days after the robbery incident. A formal identification parade is therefore not necessary. See the case of MATTHEW ORIMOLOYE VS. THE STATE (1984) 10 S.C page 138 at 143 where the learned jurist Karibi-Whyte J.S.C stated as follows:
“It is necessary to point out that spontaneous reaction towards the recognition of Appellant in respect of an offence committed less than six hours earlier is a more acceptable identification of the Appellant than a programmed identification.”
See also the cases of OKOSI VS. THE STATE (1989) 1 N.W.L.R Part 100 AT 642; IKEMSON VS. THE STATE (1989) 3 N.W.L.R Part 110 at 414 and IBRAHIM VS. THE STATE (1991) 4 N.W.L.R Part 186 page 399 at 414.

I agree with the learned trial judge in his conclusion and findings that there is nothing stopping the Court from accepting the evidence of P.W.1 and P.W.4. There is nothing on the record to show that P.W.1 and P.W.4 are tainted witnesses. They cannot be described as tainted witnesses by reason of their blood relationship.
Appellant’s Counsel made a heavy weather of the weapon used by the Appellant that there was no forensic analysis of exhibit D i.e the cutlass or matchet used by the Appellant on P.W.1. The non-conduct of forensic analysis on the weapon used by the Appellant is not fatal to the prosecution of the case. Obviously, it is not in all cases that this will be possible. I cannot see how this has occasioned miscarriage of justice or prejudice the case of the Appellant since there was cogent, reliable and authentic evidence which the trial Court believed and admitted. See the case of GBADAMOSI VS. STATE (1991) 6 N.W.L.R Part 196 page 182 at 192. The Court holds that this submission amounts to technicality that cannot assist the Court in doing justice in the case without undue delay.
Learned Counsel for the Appellant submitted that the Appellant did not admit participating in a robbery in exhibit H, A and B. The tagging of the Appellant’s statements i.e Exhibits H, A and B as confessional by the Police and the prosecution does not automatically make them confessional and the finding of the learned trial Judge in that regard is perverse. He also urged the Court to treat exhibit C as unreliable. I have carefully examined exhibits H, A, B and C contained at pages 8-15 of the record and I agree with the learned trial Judge that the statements are confessional. There are decided authorities on confessional statements. See the cases of NWACHUKWU VS. STATE (2002) 12 N.W.L.R Part 782 at 543 and ISAH VS. STATE (2007) 12 N.W.L.R Part 1049, at 582 particularly at page 608 paras D-E where it says:
“—- a confession is an admission made at anytime by any person charged with a crime stating or suggesting the inference that he committed the crime and like any other evidence, it is the duty of the trial Court to consider the circumstances under which it was made and decide what weight to attach to the confession—-”
See also Section 27 subsection 1 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.

At the earliest opportunity, Appellant made statement at Igbeba Police Station Ijebu-Ode wherein he admitted his involvement in the robbery attack bt P.W.1’s residence and their escape through the wall fence of the compound, when P.W.2 arrived. He stated further that he did not know that Sakiru was going on a robbery operation. The statement was tendered without objection and was admitted and marked exhibit H. The other statements i.e A & B were made at the State Criminal Investigation Department Eleweran. They were all admitted without objection. The ground of objection in exhibit C was that the Appellant did not make the statement. The learned trial Judge overruled the objection having compared his signatures in his other statements with the one in contention and found that they are the same. The statements no doubt incriminated the Appellant. No form of retraction can vitiate its admissibility having been made voluntarily. The lower Court was right to have treated the statements as confessions made by the Appellant.
Appellant’s evidence in Court was a mere denial of the commission of the offence. A voluntary confession of guilt by an accused is sufficient to warrant conviction without corroborative evidence, if it is direct, positive, duly made and satisfactorily proved. It is therefore desirable to have outside the confession some evidence or circumstances no matter how slight, which make it probable that the confession was true especially where the accused retracted from the statement as in the instant case. see the cases of YESUFU VS. THE STATE (1976) 6 S.C at 167; IKPASA VS. A.G BENDEL STATE (1981) 9 S.C at page 7 and MADJEMU VS. THE STATE (2001) 9 N.W.L.R. Part 718 at 349.
The learned trial judge rightly applied the principles laid down in judicial authorities to determine the truthfulness of the Appellant’s statements namely:
(i) Is there anything outside the confession to show that it is true
(ii) Is it corroborated
(iii) Are the relevant statements of facts therein true as far as they can be tested
(iv) Did the accused have the opportunity of committing the crime
(v) Is his confession possible
(vi) Are the statements in the confession consistent with other facts which have been ascertained and proved?
See EKPEYONG vs. THE STATE (1991) 6 N.W.L.R. Part 200 page 683 at 688. The learned trial Judge was properly guided and rightly admitted them having relied on the other pieces of evidence which were consistent with it in convicting the Appellant. The confession of the Appellant in exhibit H confirmed the evidence of P.W1 and P.W4 in relation to the stealing of Nokia 3310 handset, and money the subject matter of the charge. The aspect of his escape as given in evidence by P.W2 was also confirmed in the statement exhibit H.

The learned trial Judge rightly found that the story of the video clip was a mere ploy to hoodwink the Court. I am on one with the learned trial Judge that exhibit H and H1 was a free and voluntary confession of the Appellant. It is true, direct and positive to ground conviction. In exhibits A & B, the Appellant partially admitted his involvement in the robbery. The statements were admitted in evidence without objection. In exhibit A, Appellant admitted that himself and his friend Sakiru entered P.W1’s premises and saw his friend inflicting matchet cuts on P.W1. He i.e Appellant also masked his face and that they jumped through the fence for their escape. In exhibit B he stated that they entered P.W.1’s compound through the second gate and escaped when P.W2 who is the husband of P.W.1 entered the compound. There is sufficient identification evidence linking the Appellant with the robbery. The learned trial Judge was right in his findings that the admissions contained therein sufficiently linked the Appellant with the robbery. The Appellant’s evidence in Court was rightly rejected by the learned trial Judge.
Learned Appellant’s Counsel further contended that the Respondent failed to call some people mentioned by the Appellant as witnesses. Appellant testified before the trial Court that the people mentioned by him in his defence were still living at Ijebu-Ode at the time of making his defence. The Appellant failed to call them to testify. The implication is that the evidence of those people would be unfavourable to him. See Section 149(d) of the Evidence Act.
The totality of the evidence before the Court reveals that the Appellant and one person at large participated in the robbery attack of 11/2/2005 during which a Nokia 3310 handset, a sum of N39,000.00, a photo camera and sagem My X5 G.S.M were stolen. The learned trial judge rightly held that all the ingredients of the offences charged have been proved beyond reasonable doubt by the Respondent as required by law.
Appellant was also charged with the offence of conspiracy. Learned Counsel for the Appellant submitted that from the evidence placed before the Court by the prosecution, there is nothing from which it can be inferred that the Appellant had any mutual purpose with Sakiru which could be inferred from the events that occurred when they arrived at P.W1’s residence.
Learned Respondent’s Counsel in response submitted that credible evidence before the Court that the Appellant and his partner formed an agreement to carry out the robbery operation at P.W.1’s residence. He submitted that the learned trial Judge rightly inferred conspiracy from the evidence before the Court.
It is trite law that conspiracy can be inferred from the conduct of the parties. It does not necessarily have to be by direct evidence of agreement. The proof of conspiracy is generally a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized in law that in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to gome by. Thus the fact that there was no positive evidence of an agreement between the accused persons to commit the offence is not enough to hold that the prosecution cannot establish the charge of conspiracy. See the cases of USUFU VS. THE STATE (2007) 3 N.W.L.R Part 1020 at 94; ALARAPE VS. THE STATE (2001) 5 N.W.L.R Part 705 at 79; OYAKHIRE VS. THE STATE (2006) 15 N.W.L.R. Part 1001 at 157 and NJOVENS VS. THE STATE (1973) 5 S.C at 17. The evidence of P.W.1 and P.W4 is quite apt and credible before the Court that the Appellant and Sakiru now at large formed agreement to carry out the robbery operation which is an unlawful act. The Respondent discharged the burden on it and has proved the charge of conspiracy against the Appellant beyond reasonable doubt. There is no doubt whatsoever arising from the pieces of evidence before the court. The sole issue is hereby resolved against the Appellant.
Finally this appeal is devoid of merit and it is accordingly dismissed. Consequently the judgment of the Ogun State High court of Justice Ijebu-Ode Judicial Division delivered by Hon. Justice N. I. Agbelu on 14th July 2008 is hereby affirmed. The conviction and sentence of the Appellant are accordingly upheld. .

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have read in advance a draft copy of the judgment of Fasanmi JCA just delivered, I agree with his Lordship’s reasoning and conclusion.
The evidence of PW1 and PW4 (victims of the offence) in this case was so positive and credible as to remove any doubt that the appellant was one of those who committed the offence charged. PW4 spontaneously identified the Appellant a few days after the incident. She stated in her testimony before the court that the robbery incident took place during daylight and lasted about one and a half hours. She was able to identify the Appellant from the shape of his head, his height and the fact that he was wearing the same clothes he wore during the incident. The spontaneity of the identification several days after the robbery coupled with the length of time PW4 had to observe him during the incident in my humble view obviated the need for an identification parade. See: Mathew Orimoloye vs The State (1984) 10 SC 138 at 143; Obakpolor vs State (1991) 1 NWLR (165) 113; Ebenehi vs state (2008) 10 NWLR (1096) 596 at 607 N.

The evidence of the prosecution witnesses, PW1 and PW4 was cogent, credible and unshaken under cross-examination. In addition, the Appellant’s confessional statements Exhibit H and H1 which were admitted in evidence without objection were subjected to the test in Idowu vs State (NSCQR 96 at 111) to ascertain whether there was anything outside the statements to show that they were true. The learned trial Judge painstakingly ‘considered the evidence of the prosecution witnesses and found that the narration of events in Exhibit H corroborated the evidence of PW1, PW3 and PW4. His Lordship was satisfied, rightly in my view, that there was sufficient evidence outside the confessional statement, which pointed irresistibly to the conclusion that the appellant was one of those who committed the offence on 11/2/2005.
Where a trial court has properly fulfilled its primary function of evaluation of evidence and ascription of probative value thereto, an appellate court would not interfere with the decision reached unless such evaluation and findings of fact are not based on a proper and dispassionate appraisal of the evidence or where the findings are perverse. See: Saleh vs B.O.N. Ltd (2006) 6 NWLR (976) 316 at 329-330 H-C; Gaji vs Paye (2003) NWLR 823) 583; Agbaje vs Fashola (2008) 6 NWLR (1082) 90 at 153 B-E.
In the instant case I find no reason to interfere with the findings of the learned trial Judge.
For these and the fuller reasons contained in the lead judgment, I also find the appeal to be lacking in merit. I also dismiss it. I affirm the decision of the High Court of Ogun State, Ijebu-Ode Judicial Division delivered on 14/7/08 in charge No. NCJ/5C/2006 per AGBELU, J. and accordingly uphold the conviction and sentence of the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A: My learned brother, FASANMI, J.C.A., availed me the opportunity of reading in draft the pain-staking judgment just delivered. I entirely agree with it. I should have said no more on account of the thoroughness of the judgment.
But for the dreadful fact that the appeal is on death sentence, I wish to add one or two words by way of general observation.
The P.W.1 was the victim of the crime. Her daughter, the P.W.4, was an eye-witness to the commission of the crime. Mere blood affinity of the P.w.4 with the P.W.1 is not enough to impair their credibility as eyewitnesses to the crime – see Alo Chukwu v. The state (1992) 1 SCNJ page 121.

The previous statements of witnesses for the prosecution were not used in the trial court to cross-examine their makers for the purpose of contradicting their respective testimonies. The exercise is best trial court. It late in the proceedings to raise the matter on appeal. See sections 199, 208, 209 and 210 (c) of the Evidence Act, and Sambo v. The State (1993) 7 SCNJ 128.
The submission by the learned counsel for the appellant that the P.W.1 and the P.w.4 crafted their testimonies to exact vengeance on the appellant appears conjectural. A serious accusation of that sort should have been put to the P.W.1 and the P.W.4 under cross-examination for the trial court to observe their reaction to it for the purpose of gauging their credibility. To raise it for the first time on appeal is, with respects, unhelpful – see Okosi and Another v. The State (1989) 1 NWLR (Pt.100) 642 at 657. The respondent’s learned counsel is quite right in her submissions on page 6 of the respondent’s brief of argument that it is belated to raise such an accusation on appeal.
Paragraph 5, 19 of the appellant’s brief of argument complained about the withholding of the statements of prosecution witnesses by the prosecution. The compiled record does not show any demand for the statements by the defence, and the refusal of the prosecution to make them available to the defence. A demand had to be made first. The refusal to honour the demand must be established before the presumption of withholding evidence under section 14 (d) of the Evidence Act may be invoked against the party withholding the document – see Aremu v. The State (1991) 7 NWLR (Pt.201) page 1 at pages 17 – 18.
P.W.1 and the P.W.4 gave unchallenged credible eye-witness account of the armed robbery incident which occurred in day time. They made firm reference to the use of a machete by the appellant to strike machete blows on the p.w.1’s head, in the course of the armed robbery in her house. Their unshaken evidence on the use of the machete by the appellant on the P.W.1’s head sufficed to prove that aspect of the case.
Accordingly, it was unnecessary to produce the machete in evidence or to have it forensically examined as a piece of evidence to corroborate the testimonies of the P.W.1 and P.W.4 – see Olayinka v. The State (2007) 4 SCNJ 53.
For the ample reasons given by my learned brother, FASANMI, J.C.A., in the said judgment, I too would dismiss the appeal and uphold the conviction and Sentence of death imposed on the appellant by the court below.

Appearances

Olakunle Agbebi For Appellant

AND

M. Osibajo State Counsel Ogun State Ministry of Justice For Respondent