ADEKOYA v. STATE OF LAGOS (2022)

ADEKOYA v. STATE OF LAGOS

(2022)LCN/16002(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, April 25, 2022

CA/LAG/CR/390/2020

Before Our Lordships:

Abubakar Sadiq Umar Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

MORUFU ADEKOYA APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN PRESUME THAT EVIDENCE WHICH COULD BE AND IS NOT PRODUCED WOULD, IF PRODUCED, BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT

THE POSITION OF LAW ON THE DEFENCE OF ALIBI

The defence of Alibi by its very nature must absolve a defendant of any guilt whatsoever where the defence is successfully established because it places the defendant at the time of the commission of the offence at a location which is different from the scene of the crime. The successful plea of the defence of Alibi is the physical impossibility of an accused person being guilty of the offence charged as the accused was in a different location at the time of the commission of the offence.

It is clear from the record of appeal and the procedural history of this case, the extra-judicial statement of the Appellant contains the defence of alibi (see page 21 of the Record) but it was not tendered in Court at trial. The question to be asked now is what is the status of an extra-judicial statement not tendered in Court during trial? The Supreme Court in the case of Igwe v The People of Lagos (2021) 7 NWLR (Pt. 1776) 448 held that statement which have not been tendered in Court do not constitute legal evidence before the Court and the Court will not act on it. In the case of Esangbedo v State (1989) 4 NWLR (Pt.113) 57, the Supreme Court per Nnaemeka-Agu, JSC held that: “we cannot look at the extra-judicial statements of PW1, PW2, PW4 and PW9 which were not tendered as exhibits during the trial because those statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State (“the lower Court” or “the trial Court”) delivered on 15th January, 2020 coram: Justice R.I.B Adebiyi in Charge No: LCD/1448C/2015. In the said judgment, the learned trial Judge convicted and consequently sentenced the Appellant to death by hanging and 15 years imprisonment for the offense of Armed Robbery and Rape, respectively.

The Appellant as 1st accused in Charge No. LCD/1448C/2015 was charged together with two others; Adefowope Kazeem and Chief Jimoh Balogun before the Ikeja Judicial Division of the High Court of Lagos State by way of Information on the Four (4) Count charge of:
CHARGE: COUNT 1
Conspiracy to commit robbery contrary to Section 297 of the Criminal Law of Lagos State, 2011
CHARGE: COUNT 2
Armed Robbery contrary to Section 295(2) (a) of the Criminal Law of Lagos State, 2011.
CHARGE: COUNT 3
Armed Robbery contrary to Section 295(2) (a) of the Criminal Law of Lagos State, 2011.
CHARGE: COUNT 4
Rape contrary to Section 258 of the Criminal Law of Lagos State, 2011

The Appellant as 1st defendant together with Adefowope Kazeem and Chief Jimoh Balogun, 2nd and 3rd defendants respectively were arraigned before the Ikeja Judicial Division of the High Court of Lagos State on the 13th of October, 2015 and pleaded not guilty to all the counts in the information. Following the ‘not guilty’ plea of the defendants, the Respondent as Prosecution subsequently opened its case on 18th January, 2016. In proof of the charge preferred against the Defendants, the Prosecution called eight witnesses, namely: Adeomi Ayomide (PW1); Adeomi Lasisi Alade (PW2); Korede Faibo (PW3); Jibowu Faibo (PW4); Sgt Olufunsho Thomas (PW5); Olushade Adunni Adeomi (PW6); Adeomi Adefikayo Olumide (PW7) and Oladipupo Olatunde Kazeem (PW8).

Subsequently, the Defendants opened their defence on 8th February, 2018 and called four witnesses namely: Ogunjinmi Oluseyi Olaniyi (DW1); Jimoh Adelaja Balogun (DW2); Morufu Adekoya (DW3); and Kazeem Adefowope Yusuf (DW4) to testify in evidence and were cross-examined by the Prosecution. During trial, the Defence tendered (8) eight documents which were admitted and marked as Exhibits: A letter dated August 6th, 2015 written by Yemi Omodele & Co to Head of Operations, EFCC, Lagos – Exhibit D1, Letter of Response by EFCC dated 1st September, 2015-Exhibit D2, Certified True Copy of the Statement of Chief Jimoh Balogun at the EFCC office on 26th March, 2014 – Exhibit D3, Certified True Copy of extracts from EFCC main gate Register- Exhibit D4, Certified True Copy of extracts from EFCC Block B Counter Register-Exhibit D5, Certified True Copy of a letter dated 20th September, 2013 written by Epe Divisional Oba and Chiefs Committee to the 3rd Defendant approving his Baaleship and Certified True Copy of a letter dated 23rd of January, 2016 written by Aleyeluwa Oba Aderibigbe Asunmo to the 3rd Defendant reinstating him as Baale- Exhibts D6 and D7 respectively, and a Bundle of documents certified by the officer of the High Court of Lagos State – Exhibit D8. The defendants closed their case on the 21st of March, 2019.

On 15th January, 2020, the trial Court in its Judgment discharged and acquitted the 2nd and 3rd defendants on all the counts but found the Appellant guilty on the 2nd and 4th count charge of Armed Robbery and rape respectively. The Appellant was consequently convicted and sentenced to death by hanging for the offense of Armed Robbery and to 15 years imprisonment for the offense of rape.

The Appellant, dissatisfied with the judgment of the learned trial Judge has appealed to this Court vide a Notice of Appeal dated 17th February, 2020. The Notice of Appeal contained three (3) Grounds of Appeal upon which the Appellant sought to set aside the Trial Court’s decision. However, by a Motion on Notice dated and filed 20th July, 2020, the Appellant sought the leave of the Court of Appeal to amend the Notice of Appeal dated 17th February, 2020. Further to this, the Appellant filed an amended Notice of Appeal dated and filed 20th July, 2020 containing Four (4) Grounds of Appeal upon which the Appellant now seeks to set aside the Trial Court’s decision.

His Counsel, Adekunle Ojo Esq., who settled the Appellant Brief of Argument formulated three issues for the determination of this appeal in the Appellant’s Brief of Argument to wit:
i. Whether or not the failure of the Prosecution to tender the Statement made by the Defendant during investigation of the offences with which he was charged renders the trial unfair, null and void and amounts to miscarriage of justice? (Distilled from Grounds 2 and 4 of the Amended Notice of Appeal).
ii. Whether or not the learned trial Judge did not err in law when he held the Appellant guilty of the offences of Armed Robbery and Rape when in fact the plea of Alibi put forward by the Appellant was not investigated by the Police neither was it adequately and properly considered by the Court? (Distilled from Ground 1 of the Amended Notice of Appeal)
iii. Whether the learned trial Judge evaluated all the evidence before finding the Appellant guilty and if not, did not his failure to do so occasion a miscarriage of Justice? (Distilled from Ground 3 of the Amended Notice of Appeal)

The Respondent’s Brief of Argument was settled by Dr. Babajide Martins. The issues distilled for determination in the said Respondent’s brief are:
1. Whether from the totality of evidence placed before the learned trial Judge, the Respondent was able to establish the guilt of the Appellant beyond reasonable doubt so as to warrant the conviction and sentence of the Appellant?
2. Whether the Respondent is compelled by law to tender extra-judicial statement of witnesses and Appellant as exhibit at the trial Court before establishing the element of offences of Armed Robbery and Rape to secure conviction?
3. Whether the learned trial Judge was right to convict the Appellant even though a defence of alibi was raised.

The learned Counsel to the Appellant filed a Reply Brief on 26th Day of January 2022. The respective briefs of argument of the Appellant and the Respondent were argued and adopted on 27th January, 2022.

I have gone through the Record of Appeal compiled and transmitted to this Court in respect of this Appeal. I have also given due consideration to the briefs of argument and the issues distilled by the parties. I am therefore of the view that the issues for determination which succinctly encompass the grievances of the Appellant are:
1. Whether the decision of the Prosecution not to tender the extra-judicial statement of the Appellant in evidence during trial is fatal to the case of the prosecution?
2. Whether the learned trial Judge was right to have refused to act upon the defence of Alibi raised by Appellant and thereby convicted the Appellant for the offences of Armed Robbery and Rape?
3. Whether the Prosecution was able to establish the ingredients of the offences of Armed Robbery and Rape beyond reasonable doubt?

The respective arguments of the parties shall be subsumed and considered in the issues formulated by the Court.

ISSUE ONE
Whether the decision of the Prosecution not to tender the extra-judicial statement of the Appellant in evidence during trial is fatal to the case of the prosecution?

APPELLANT’S ARGUMENTS
The learned Counsel to the Appellant submitted that the Prosecution in a criminal trial owes the duty to tender extra-judicial statements of the Defendant during trial especially where the offence for which the Defendant is charged carries the capital punishment. The Counsel to the Appellant submitted that the testimony of PW5, the Investigating Police Officer during trial confirmed that indeed the Appellant made extra-judicial statement at the Police Station during investigation.

Counsel to the Appellant argued that the failure of the Prosecution to tender the statement of the Appellant dated 2nd April, 2014 amounts to withholding of evidence and that such withholding amounts to a denial of the Appellant’s right to fair hearing, Counsel to Appellant relied on Section 167(d) of the Evidence Act, 2011, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 to buttress his argument. Counsel to the Appellant further relied on the case of Yusuf v. State (2018) LPELR-46718(CA) where the Court of Appeal held that “undoubtedly, the prosecution has a duty to tender any statement made by an accused person during the investigation of the crime with which the accused is charged whether or not it is in his favour.”

Counsel to the Appellant further argued that the existence of the extra-judicial statement of the Appellant to the police is uncontroverted and as such the Prosecution has a duty to tender that statement in evidence but failed to do so because it would be favourable to the case of the Appellant. Counsel to the Appellant therefore submitted that that omission by the Prosecution renders the trial unfair and for that reason, the Appellant is entitled to an acquittal, Counsel to the Appellant relied on the case of Ogudo vs State (2011) 18 NWLR (Pt. 1278)11 where the Supreme Court per Rhodes Vivour JSC held that “the prosecution is expected to tender all statements made by the accused person to the police whether at the time of his arrest or subsequently…to deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the police to my mind renders the trial unfair.” The Counsel to the Appellant also relied on the case of Olayinka v State (2007) ALL FWLR (Pt. 373) SC and The People of Lagos State v Umaru (2014) ALL FWLR (Pt.737) 686-687 to support his argument.

RESPONDENT’S ARGUMENT
The Respondent’s Counsel submitted that there was no time during the trial that the Appellant requested or made necessary application to the lower Court to request from the Respondent any document that could assist his case. The Respondent’s Counsel argued that the allegation by the Appellant in his Brief of Argument that the Respondent withheld evidence is unfounded and vexatious. Respondent’s Counsel argued that if the Appellant seriously required some documents which were not made available to him during trial, he had ample time and opportunity to apply formally to the trial Court for an order compelling the Respondent to make available that document which the Appellant required for his defence. The Respondent’s Counsel further argued that it is at the discretion of the Prosecution to determine which witness to call or what document to tender during trial, Respondent Counsel relied on the case of Kingdom Okere v IGP (2018) LPELR-44178(CA) where the Court of Appeal held that it is within the discretion of the Prosecution to determine the witnesses to be called and the evidence necessary to prove its case. The Court of Appeal in the case of Kingdom Okere v IGP (supra) quoted the Supreme Court in the case of Busari v. State (2015) LPELR-2479(SC) where the Apex Court per Muntaka-Coomassie JSC held that “If the Applicant felt strongly about his alleged statement made by him at the police station which ought to be tendered by the Prosecution but was concealed and/or not tendered as alleged, the onus was on the Appellant to compel the prosecution to tender same during trial. The Respondent’s counsel further relied on the case of Egwu Sunday v The State (2013) LPELR-20196 (CA).

The Respondent’s Counsel submitted that the Respondent as Prosecution at the trial Court was not under any obligation to tender the extra-judicial statement of any of its witnesses especially when the witnesses have been called to testify before the trial Judge. The Respondent’s Counsel argued that if at trial the Appellant felt there were discrepancies in the testimonies of the witnesses called by the Respondent, the Appellant could have called for his own extra-judicial statement and tender same for the purpose of discrediting the Respondent’s witnesses during cross-examination, that the Respondent’s decision not to tender the same does not amount to withholding of evidence as argued by the Appellant in his brief of argument. Respondent’s counsel relied on the case of Oranika v The State (2018) LPELR 45481 (CA). The Respondent’s Counsel submitted that once the Respondent proves its case beyond reasonable doubts, the failure to tender the extra-judicial statement of the Appellant cannot result in the acquittal of the Appellant, Respondent’s Counsel relied on the case of Olayinka v The State (2007) 6SC Pt.1 pg.210.

APPELLANT’S REPLY
In response to the Respondent’s argument, the learned Counsel to the Appellant argued that the Respondent had erroneously relied on the case of Kingdom Okere v IGP (2018) LPELR-44178(CA) in respect of whether or not the prosecution owes a duty to produce the statement of the Appellant at trial.

The Counsel to the Appellant submitted that although based on the decision of the Court of Appeal in the Kingdom Okere’s case, the prosecution does not owe a duty to tender extra-judicial statement made by an accused person during trial however, the Supreme Court in the case of Ogudo v State (2011) 18 NWLR(Pt.1278)11 has decided that the prosecution has a duty to tender every statement made by an accused during investigation of the crime with which the accused is charged whether or not it is in his favour.

The Counsel to the Appellant therefore submitted that by the doctrine of judicial precedent, the position of the Supreme Court on this issue is binding on all Courts that the onus is on the prosecution to tender extra- judicial statements of an accused person during trial. Counsel to the Appellant further submitted that a subsequent decision of the Court of Appeal in the case of Yusuf v State (supra) where the Court of Appeal quashed the conviction of the Appellant on the ground that the statement of the appellant was not tendered during trial now follow the decision of the Supreme Court in the Ogudo’s case.

RESOLUTION OF ISSUE ONE
The contention of the Counsel to the Appellant is that the Appellant made an extra-judicial statement to the Police which was not tendered in evidence by the Prosecution at trial. It is clear that the Appellant’s extra-judicial statement was made at the Force Criminal Investigation Department, Abuja and dated 2nd April, 2014 to the Police (see page 21-24 of the Record). Also, PW5, the Investigating Police Officer testified during Examination-in-Chief thus: “Before the case was transferred, the statement of the Defendant and others were written”. (See page 186 of the Record) therefore the existence of the extra-judicial statement of the Appellant is not in doubt but the Respondent as Prosecution did not deem it necessary to tender same in evidence at trial.

The Counsel to the Appellant failed to state whether the extra-judicial statement of the Appellant is exculpatory and if tendered in evidence, it would destroy the Respondent’s case and completely exonerate the Appellant. If so and in view of the gravity of the offence against the Appellant, one would expect that the Appellant would have simply applied to tender the extra-judicial statement which at all material times was a part of the record of the Court as contained in page 21 – 24 of the records of appeal. It is also uncertain whether the Counsel to the Appellant issued a Notice to Produce the extra-judicial statement of the Appellant at any material time.

By virtue of Section 167 (d) of the Evidence Act, the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See the case of State v Olashehu Salawu (2011) LPELR-8252 SC. This is however not the situation in this present case as the extra-judicial statement was at all material time available to the Appellant during the trial of the case. The provision of Section 167(d) of the Evidence Act is therefore not applicable in this case as the extra-judicial statement of the Appellant which already forms a part of the record of the Court could not have been said to have been withheld by the Respondent.
If the Appellant strongly wanted to bring to the notice of the Court some special facts contained in his extra-judicial statement to challenge the testimonies of Prosecution witnesses during the course of the trial, the Counsel to the Appellant would have issued a Notice to Produce or apply to the trial Court for an order compelling the Respondent to make available same which he required for his defence and the trial Court would have seen to it that the Prosecution followed the order. See the case of Nweke v State (2017) LPELR-42103 where the Supreme Court per Paul Adamu Galinje, JSC held: “Therefore it is my view that once such request is made, the trial Court must see to it that the prosecution complies with its order to avail the accused with all the documents which are available. The appellant should not complain that his right to fair hearing as enshrined in the provisions of Section 36(6) (b) of the 1999 Constitution was infringed.” See also the case of Ebele Okoye v COP (2010) SC 279/2011.
The presumption of withholding evidence is therefore not applicable to the facts and circumstances of this case. It is the attitude of the Court to rely much more on the testimonies of witnesses in Court than other extraneous or ancillary evidence adduced by the parties, see the case of Oranika v State (2018) LPELR 45481 (CA) where this Court held per Massoud AbdulRahman Oredola, J.C.A thus: “What is paramount in a criminal trial, is the testimony of the witnesses in Court and fair opportunity given to the parties to present their cases. Any other additional evidence adduced by the prosecution (the respondent in the instant appeal) would be more of a surplusage and not of a necessity. See the case of Peter v. The State (2013) LPELR 20302 and the case of Zaman v. The State (2015) LPELR-24595 (CA).

Therefore, I find no merit in the issue raised by the Appellant and this issue is hereby resolved against the Appellant.

ISSUE TWO
Whether the learned trial Judge was right to have refused to act upon the defence of Alibi raised by Appellant and thereby convicted the Appellant for the offences of Armed Robbery and Rape?

APPELLANT’S ARGUMENTS
The Counsel to the Appellant submitted that the learned trial Judge did not take cognizance of some facts before discountenancing the defence of alibi raised by the Appellant. The Counsel to the Appellant highlighted the facts as follows, that: The Appellant raised his defence of alibi in his extra-judicial statement to the Police on the 2nd of April, 2014 but the Police refused to investigate the Appellant’s defence of alibi and also refused to tender same at trial, the testimony of the Appellant and that of DW1 and DW2 fixed the Appellant to the EFCC office at Ikoyi other than the crime scene, the Appellant was not arrested on the date of the incident and no weapon or any stolen item was found on him or in his house when he was eventually arrested, the extra-judicial statement of the Appellant was not confessional and the police who took the statement of the Appellant was not called to testify by the Prosecution.

The counsel to the Appellant further submitted that the testimonies of PW1 and PW7, PW2 and PW6 required corroboration but were not corroborated. Counsel to the Appellant argued that all these facts highlighted are circumstantial evidence that supported the defence of alibi.

The counsel to the Appellant argued that the testimonies of DW1 and DW2 corroborated the alibi of the Appellant as well as the evidence tendered during trial. DW1 tendered in evidence Exhibit D1, a letter dated 6th, August 2015 written by the Defendants’ solicitor to the Head of Operations of EFCC; Exhibit D2, CTC of the Statement of the 3rd Defendant at EFCC office on the 26th of March, Exhibit D3; CTC of extracts from EFCC Main Gate Register and Exhibit D4, CTC of Block B Counter Register to establish alibi.

The Counsel to the Appellant further argued that an alibi not investigated cannot be rebutted and referred to the case of Umani v. State (1988) 2 SC 88. Also, relying on the case of Bozin v. State (supra) 2 NWLR (Pt. 84) 481, Counsel to Appellant submitted that the prosecution having failed to investigate the alibi of the Appellant cannot be said to have to proven its cases beyond reasonable doubt.

RESPONDENT’S ARGUMENT
The Respondent’s Counsel submitted that the testimonies of PW1 and PW7 at the trial Court were direct evidence of eyewitnesses. The testimonies of PW1 and PW7 have sufficiently rebutted the defence of alibi raised by the Appellant as it placed the Appellant at the scene of the crime. The Respondent’s Counsel argued that once the prosecution is able to establish that the accused person was at the scene of the crime, the defence of alibi fails, Respondent’s Counsel relied on the case of Emmanuel Egwumi v. The State (2013) 13 NWLR (Pt. 1372) pg. 525. Njovens v. State (1973) 5SC 17.

The Respondent’s Counsel submitted that PW1 and PW7 adduced oral evidence fixing the Appellant at the scene of the crime at about 10:00am on the 26th of March, 2014 and the evidence was not rebutted by the Appellant. Respondent’s Counsel argued that the exhibits tendered by DW1 did not support the Appellant’s claim on his whereabouts on the 26th of March, 2014. Respondent’s Counsel submitted that by the testimonies of PW1 and PW7, the Appellant was duly identified at the crime scene and so there was no burden on the Police to verify the Appellant’s plea of alibi, the evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiar within the knowledge of the accused person raising such a defence, Respondent’s counsel relied on the case of Victor Essien Victor v The State (2013) 12 NWLR (Pt.1369) pg. 465, Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16. The Respondent’s Counsel submitted that the Appellant failed to give account of where he was at 10:00am on 26th March, 2014 and that the evidence given by DW1 was merely to accommodate the Appellant who was not with DW1and DW2 at the EFCC office, Ikoyi, therefore the learned trial Judge was right to have held that the Appellant failed to place any evidence to establish the defence of Alibi.

RESOLUTION OF ISSUE TWO
The defence of Alibi by its very nature must absolve a defendant of any guilt whatsoever where the defence is successfully established because it places the defendant at the time of the commission of the offence at a location which is different from the scene of the crime. The successful plea of the defence of Alibi is the physical impossibility of an accused person being guilty of the offence charged as the accused was in a different location at the time of the commission of the offence.

Also, the Supreme Court in the case of State v Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 held, per Karibi-Whyte, JSC that: “it is a well settled principle of the administration of justice in our Courts that only evidence properly authenticated either by the oral testimony of a party or the witness statement tendered and admitted during proceedings can be evidence in a trial. Extra-judicial statement which remains in that category, however credible they may appear, cannot be used as evidence at trial.”

The Appellant during trial also raised this defence of alibi and gave testimony of his in support of the defence of Alibi on the 26th of March, 2014. However, the position of the law is clear that the prosecution are not under a mandatory obligation to investigate a plea of alibi under every circumstance if there are credible evidence to place the accused at the scene of the crime. See the case decision of the Supreme Court in the case of Okere v IGP (2021) 5 NWLR (Pt. 1770)543 per Abba Aji, JSC held that “Where the presence of an accused person is fixed at the scene of the crime, the defence of alibi no matter how beautifully put up is defeated and needs no investigation”.

In the instant appeal, PW1, PW4 and PW7 testified unequivocally and unmistakably of knowing the Appellant as one from their community. PW1 testified that she saw the Appellant alias “six tiger” in the company of other hoodlums armed with guns, she said she knows the Appellant very well because he used to buy commodities from their stall. PW1 further testified that the Appellant with other hoodlums came to the back of their house to pack crates of empty bottles and later came to the window of the room where she was hiding with her siblings, when the Appellant saw them through the window, he pointed a gun at them and commanded them to open the door or else he would shoot them. PW1 testified that she opened the door and the Appellant and some of the hoodlums now masked entered the house, ransacked the house and carted away with phones, PW1 gave testimony that the Appellant later returned with some other hoodlums to ransack the house again and cart away laptops, wristwatches, jewelleries and money and thereafter led her out of the house to a nearby bush where she was raped by the Appellant and another unidentified man. During the cross-examination of the Appellant, the Appellant testified that he also knows PW1 very well. PW7 gave similar testimony with that of PW1, he said he knows the Appellant well and that the Appellant has a shrine within the community and he used to come to their shop to buy palm-oil, PW7 testified that it was the Appellant that led other hoodlums to their house and when the Appellant saw them through the window, he pointed gun at them and commanded them to open the door or else he would shoot them. PW4 testified that he saw the Appellant among those who invaded the community on the 26th day of March, 2014 bearing guns and cutlasses and broke into his house, shot at him, cut him with cutlass, dragged him out of the house and tied him to a tree. PW1, PW4 and PW7 all gave direct and cogent eyewitness evidence fixing the Appellant to the scene of the crime on 26th March, 2014.

At this juncture, it is important to note that it is the duty of the learned trial judge to consider the credibility of the evidence adduced vis-à-vis the alibi of an accused person even where such defence of alibi was not investigated by the Prosecution. Where there is strong and positive identification of the accused at the scene of the crime which is believed by the trial judge, the Appellate Court should not disturb such a finding. See the case of Aiguoreghian v. State (supra) and Attah v State (2010) 10 NWLR (Pt. 1201) 190.

In this case, though the Appellant accused the police of not investigating his defence of Alibi, I find in the circumstance that the evidence adduced by the prosecution is compelling and completely defeats the defence of alibi raised by the Appellant in the circumstance of this case. The learned trial judge relied on stronger and credible evidence presented by the prosecution in disregarding the defence of Alibi.

Counsel to the Appellant had argued that the Appellant together with Ogunjinmi Oluseyi Olaniyi (DW1); Jimoh Adelaja Balogun (DW2); and Kazeem Adefowope Yusuf (DW4) had visited the EFCC Office, Ikoyi on the 26th March, 2014 at 10:00am, DW1 tendered in evidence Exhibit D4 and D5, CTC of extracts from EFCC Main Gate Register and CTC of Block B Counter respectively which ordinarily should bear the name of the Appellant as being one of the visitors to the EFCC office on the 26th March, 2014. Neither of the extracts showed that the Appellant signed in at the EFCC on the 26th March, 2014 at 10:00am. The extracts reflect the name of the DW2 (Chief Jimoh Balogun) and ‘3 others’, those ‘3 others’ are unknown. It is my reasoning that those extracts have failed to prove the alibi of the Appellant.

After a review of the totality of the evidence adduced at the lower Court, I am of the view that the Prosecution established through compelling and unshaken testimony of the Prosecution Witnesses fixing the Appellant at the scene of the crime at about 10:00am on the 26th of March, 2014 and this defeats the defence of Alibi. Accordingly, therefore issue two herein is resolved against the Appellant.

ISSUE THREE
Whether the learned trial Judge was right in holding that the Respondent proved its case beyond reasonable doubt against the Appellant?

APPELLANT’S ARGUMENT
The Counsel to the Appellant argued that the trial judge was in error when he relied on the testimonies of PW2, PW6 and PW8 having found that the evidence given by these witnesses were hearsay and thus not relevant to establish the guilt of the Appellant. Counsel to the Appellant argued that the trial Court cannot approbate and reprobate at the same time, Counsel to the Appellant relied on the case of Saror & Anor v Suswam (2012) LPELR 8611 CA.

Counsel to the Appellant also argued that the evidence of PW3 and PW4 which the trial Court adjudged vague cannot be a ground for the conviction of the Appellant for Armed Robbery. Counsel to the Appellant argued that vague evidence does not enjoy the certainty of an evidence which proves a crime beyond reasonable doubt, and as a result of this, the trial Court cannot rely on the vague evidence of PW3 and PW4 to corroborate the testimonies of PW1 and PW7.

Counsel to the Appellant submitted that the evidence of PW1 and PW7 are not corroborated by any circumstantial evidence or an independent credible evidence, he furthered argued that the trial judge ought to have treated the testimonies of PW1 and PW7 who are siblings with caution, counsel to the Appellant relied on the case of Aliyu Wakala & Ors v The State (1991) 8 NWLR (Pt. 11) 552. CA where this Court per J.D Ogundare, JCA (as he then was) held that: “the evidence of relatives of victims of crimes even as eye witnesses should be treated with caution, as they may have their interest to serve and the trial judge should caution himself and look for corroboration as in evidence of accomplices in order to satisfy himself as to whether or not the prosecution has proved its case beyond reasonable doubt.” Counsel to the Appellant further relied on the case of Iheanyighichi Apugo v The State (2006) LPELR 25391 SC, Rex v Thompson Udo Essien 4 WACA 112, The State v Fatai Azeez (2008) NWLR (Pt. 1108) 439.

Counsel to the Appellant further argued that from the testimonies of PW1 showed that those who came to rob them and rape her were masked, and it was a mere suspicion and speculation of PW1 to point at the Appellant as part of those who robbed and raped her. Counsel to the Appellant submitted that suspicion has no place in law and every doubt should be resolved in the favour of the Appellant. Counsel further argued that it is doubtful that PW1 would have such composure in the midst of pandemonium to be able to identify the appellant among the hoodlums. Counsel to the Appellant argued that PW1 in her extra-judicial statement said she phoned her parents when the crisis started but did not tell her parent that she saw the Appellant, therefore the claim that she saw the Appellant must be an afterthought.

Counsel to the Appellant argued that the testimonies of PW1 contradicts the testimony of PW7, that unlike PW1, PW7 did not state that the men who took PW1 to the bush to rape her were masked. Counsel to the Appellant argued that this contradiction raised doubts as to the identity of those who raped and robbed the PW1.

RESPONDENT’S ARGUMENT
The Respondent’s Counsel submitted that the standard of proof of crime is a proof beyond reasonable doubt and not beyond all shadow of doubts, respondent’s Counsel relied on the case of Iregu Ejima Hassan v. The State (2016) LPELR- 42554 (SC). Respondent’s Counsel submitted that the offence of Armed Robbery and rape were established against the Appellant beyond reasonable doubts.

The Respondent submitted that to establish the offence of Armed Robbery, it must be proven that there was a robbery or series of robbery, that the robbery or each robbery was an armed robbery or robberies and that the defendant took part in the armed robbery or robberies. Respondent’s counsel relied on the case of Iliyasu Suberu v. The State (2010) LPELR – 3120 (SC), Shina Akinrinlola v The State (2016) LPELR-40641 (SC).

To argue that Appellant indeed committed Armed Robbery, the Respondent Counsel submitted that the evidence of PW1 and PW7 who were eyewitnesses showed that the Appellant was armed. PW1 and PW7 testified that the Appellant and others came into the community with guns and cutlasses. The Appellant and others used cutlasses to cut through the window net and pointed gun at them threatening to shoot if they refused to open the door. Respondent’s Counsel cited Section 295(2) (a) of the Criminal Law of Lagos State, 2011which states that:
(2) Where –
(a) Any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or any obnoxious or chemical materials or is in company of any person so armed.

The Respondent’s Counsel submitted that to establish the offence of rape, the following ingredients must be proved beyond reasonable doubts: that the accused had sexual intercourse with the victim, (b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation (c) that the victim was not the wife of the accused (d) that the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not (e) that there was penetration. Respondent’s Counsel relied on the case of Ezigbo v The State (2012) 16 NWLR (Pt. 1326) SC.

The Respondent’s counsel submitted that the Respondent at the lower Court proved the offence of rape by the testimonies of PW1, PW2, PW6, PW7 and PW8. The Respondent’s Counsel argued that PW1 gave account of how the Appellant after threatening them with gun to open the door, took her to the bush and raped her. The Respondent’s counsel further argued that the Appellant did not challenge the testimony of PW1and PW7 during trial and evidence which is neither challenged nor impugned under the crucibles of cross-examination remains good, credible and should be relied upon by the trial judge who would in turn ascribe probative value thereon. The Counsel to the decision of the Court in Ebeinwe v. State (2011) 7 NWLR 402.

The Respondent’s Counsel submitted that the identity of the Appellant was not in doubt as PW1 and PW7 knew the Appellant before the incident and there was nowhere in evidence that the Appellant hid his face from being identified by PW1 and PW7. The Respondent’s Counsel cited the case of Ude v. The State (2016) 14 NWLR (Pt. 1531) 122 at 158 where the Supreme Court held that victims of a crime are described as eyewitnesses who can best describe from personal experience, what they saw or happened to them. The probative value of an eyewitness account cannot be overemphasised in criminal trial, Counsel relied on the case of Oyakhere v The State (2006) All FWLR (Pt. 305) 703 at 720.

The Respondent Counsel further submitted that the trial Court performed its duty by evaluating the totality of evidence and rightly held that all the ingredients of the offence of rape and armed Robbery were established against the Appellant beyond reasonable doubt.

RESOLUTION OF ISSUE THREE
The Appellant was convicted for the offence of Armed Robbery under Section 295 (2) (a) of the Criminal Law of Lagos State 2011 and the offence of Rape under Section 258 of the Criminal Law of Lagos State. To resolve the issue of whether the Prosecution established the ingredients of the offences of Armed Robbery and Rape beyond reasonable doubt, I must highlight the ingredients of both offences and determine whether the Appellant was linked to the offences under the beam of evidence. I will start with the ingredients of the offence of Armed Robbery.

Section 294 and 295 of the Criminal Law of Lagos State provides that:
294. Anybody who steals anything and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is said to be guilty of robbery.
295. Any person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one years
(1) Where –
(a) Any offender mentioned in Subsection (1) of this Section is armed with any firearm or nay offensive weapon or any obnoxious or chemical materials or is in company of any person so armed; or
(b) At or immediately before or immediately after the time of robbery, the said offender wounds or uses violence on any person, the offender shall be sentenced to death.
The Supreme Court in the case of Bozin v State (1985) LPELR – 799 (SC) highlighted the ingredients of the offence of Armed Robbery to wit:
1. There was a robbery
2. That the robbery or each of the robbery was an armed robbery
3. That the defendant took part in the armed robberies
See also the case of Olayinka v State (2007) 9 NWLR (Pt.1040) 561.

The evidence of PW1 and PW7 confirmed that the Appellant and others were armed with guns, cutlasses and bottles when they attacked their house and carted away with money, phones, laptops, wristwatches and jewelleries from their house. PW1 and PW7 testified that the Appellant cut the net of their house, pointed a gun at them and threatened to shoot if they refused to open door for them. PW2 (the father of PW1 and PW7) testified that when he got home, he discovered that N220,000.00 belonging to him, N47, 000.00 belonging to his wife and also the children’s laptops were stolen, PW6 (The mother of PW1 and PW7) gave similar testimony. PW4 in his testimony gave a detailed account of how hoodlums invaded the community with arms and other dangerous weapons and attacked him, PW4 in his testimony positively identified the Appellant among the hoodlums. There is no doubt that the three ingredients of the offence of armed robbery has been established against the Appellant and the trial Court duly found the evidence of PW1, PW7 and PW4 compelling enough to conclude that the Appellant was at the scene of the crime and participated in the robbery while being armed.

In the case of Adeyemo v. State (2015) 16 NWLR (Pt. 1485) 311, the Supreme Court has settled it that the prosecution can prove its case against the accused person by all or any of the following means:
(a) Evidence of any eye witness of the crime.
(b) Confession or admission when voluntarily made by the accused;
(c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.

The law is settled in criminal trials that the burden of proving the guilt of an accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt.

Upon a careful review of the records in this appeal particularly of all the testimonies of the witnesses in evidence, the testimonies of PW1, PW4 and PW7 are eye witness testimonies and it was held by the Supreme Court that eye witness testimony is the next best evidence in proof of a crime after the confessional statement of an accused person. The evidence of PW1, PW4 and PW7 are cogent, compelling and conclusive of the fact that indeed the Appellant participated in the attack on Odo-Onosa community on the 26th March, 2014 where the Appellant together with other hoodlums robbed PW1, PW7 and others at gunpoint.

The Appellant was also convicted for the offence of rape under Section 258 of the Criminal Law of Lagos State, 2011.
Section 258 of the Criminal Law of Lagos State provides that:
258 (1) any man who has unlawful sexual intercourse with a woman or girl without her consent is guilty of the offence of rape and liable to imprisonment for life.
(2) A woman or girl does not consent to sexual intercourse if she submits to the act by reason of force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to the nature of the act.
(3) Sexual intercourse between a man and a woman who are married is not unlawful
(4) Sexual intercourse is complete on the slightest penetration of the vagina.
For the offence of rape to be established, it must be proved that the accused had sexual intercourse with the female victim; the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly, not caring whether the victim consented or not; and there was penetration. See Posu v State (2011) 2 NWLR (Pt.1234) 393, Isa v Kano (2016) 6 NWLR (Pt. 1508) 243; Ezigbo v State (2012) 16 NWLR (Pt.1326) 318.
In the case of Posu v State (supra), the Supreme Court held that the most important and essential ingredient of the offence of rape is penetration. The Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Any or even the slightest penetration will be sufficient to constitute the act of sexual intercourse. See also Jegede v State (2001) 14 NWLR (Pt. 723) 264.

PW1 testified that she was dragged by the Appellant and two other persons to the bush where the Appellant and one of the two other persons forcefully had sexual intercourse with her with by the use of threat and intimidation, without her consent.

In Lucky v The State (2016) LPELR-40541 SC, the Supreme Court held that: “the legal principle in respect of the offence of rape is that corroboration is evidence tending to show that the story of the prosecutrix that the accused raped her is true”.

The evidence of PW7 who saw the PW1 being dragged away by the Appellant and who saw PW1 all ruffled when she came back after about 45 minutes is circumstantial evidence that PW1 was raped, the testimony of PW8, the medical doctor who examined her testified that: “I examined her vaginal passage there was laceration of the hymen which was tender to touch and mildly hyperaemic, the laceration was not a result of encumation (sic) but due to the lack of arousal, the entry must have been dry and this caused bruises. As a medical doctor, the laceration confirmed rape, as there was penetration without lubricant” (see page 199 of the Record). The evidence of PW8 also corroborated the testimony of PW1.

From the pieces of evidence, all the ingredients of the offence of Armed Robbery and Rape have been proven against the Appellant beyond reasonable doubt. The effect is that I resolve this issue against the Appellant. Resultantly, the three issues having been resolved against the Appellant, the appeal is devoid of merit. This appeal fails and is hereby dismissed. The Judgment of the High Court of Lagos delivered on 15th January, 2020 in Charge No: LCD/1448C/2015 convicting and sentencing the Appellant to death by hanging and 15 years imprisonment is hereby affirmed.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have had the privilege of reading the draft of the judgment written by my learned brother, Abubakar Sadiq Umar, JCA and I agree with his reasoning and the decision arrived at. I also agree that the appeal is devoid of merit and is accordingly dismissed.

The judgment of the High Court of Lagos State delivered on the 15th day of January, 2020 in Charge No. LCD/1448C/2015 convicting and sentencing the Appellant to 15years imprisonment as well as death by hanging is hereby affirmed.

PETER OYINKENIMIEMI AFFEN, J.C.A.: My Lord, ABUBAKAR SADIO UMAR, JCA obliged me with a draft of the leading judgment and I have had the advantage of reading it before now.

I agree with his Lordship’s reasoning and conclusion, which I hereby adopt as mine in dismissing this appeal and affirming the judgment of the High Court of Lagos State delivered on 15th January 2020 in Charge No. LCD/1448C/2015.

Appearances:

Dr. Adekunle Ojo (SAN) with him, M.T. Ayegbusi For Appellant(s)

Dr. Babajide Martin (D.P.P.) with him, Ms. Adijat Ogunwemimo (State Counsel) For Respondent(s)

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