AINA v. STATE (2021)

AINA v. STATE

(2021)LCN/15175(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 09, 2021

CA/IB/154C/2019

Before Our Lordships

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

OJO AINA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT AN OBJECTION TO THE ADMISSIBILITY OF A STATEMENT IS PREMISED ON AN OUTRIGHT DENIAL OF HAVING MADE THE STATEMENT, IT AMOUNTS TO A RETRACTION OF THE STATEMENT

Now, it is rudimentary law that where an objection to the admissibility of a statement is premised on an outright denial of having made the statement, it amounts to a retraction of the statement since it raises the question of non est factum and the statement will be admissible in evidence without the necessity of conducting a voir dire; the only issue will be the weight to attach to such a retracted statement: IBEME vs. THE STATE (2013) LPELR (20138) 1 at 5, ODEH vs. FRN (2008) ALL FWLR (PT 424) 1590 at 1618 and LASISI vs. THE STATE (2013) LPELR (20183) 1 at 28-29. The objection to a statement on the basis of non est factum is a question of fact which is determined at the conclusion of the trial as the statement even though retracted is admissible in evidence vide AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860) 367 at 402, MADJEMU vs. THE STATE (2001) 25 WRN 1 at 12-13, 23 and 25, R vs. IGWE (1960) 5 FSC 55 or (1960) SCNLR 158, EHOT vs. THE STATE (1993) 5 SCNJ 65, OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39, EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385 at 431, ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20 and KAREEM vs. FRN (2001) 49 WRN 97 at 111. PER OGAKWU, J.C.A.

TEST TO EXAMINE A RETRACTED CONFESSIONAL STATEMENT

However, the law enjoins the Court not to act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the statement and to seek any other evidence, however slight, which makes it probable that the confession is true. The tests enjoin the Court to examine the statement in the light of other credible evidence by enquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts in the confession are true as far as can tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with other facts ascertained and proved.
See R vs. SYKES (1913) 1 Cr. App R 233, IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81 and UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189. PER OGAKWU, J.C.A.

WHETHER OR NOT THERE IS A LEGAL PRESCRIPTION AS TO THE FORMAT TO ADOPT IN WRITING A JUDGEMENT

It is trite law that the writing of a judgment is an art and that there are several ways of going about it. Indeed, there could be as many variations as there are Judges. Whatever variation adopted, the important thing is that all the evidence adduced must be considered. There are no legal prescriptions as to any particular format to adopt in writing a judgment. See ONUOHA vs. THE STATE (1988) 3 NWLR (PT 83) 460 at 464, AWOPEJO vs. THE STATE (2001) 12 SCNJ 293 at 302 and NDUKWE vs. THE STATE (2009) LPELR (1979) 1 at 53-56. In ADAMU vs. THE STATE (1991) LPELR (73) 1 at 11-12, Belgore, J.S.C. (later CJN) stated:
“(A) trial Judge has a duty to consider all the evidence before him, the more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt… The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty, the Judge must evaluate all the evidence. It is not the justice of a case if a Judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons must differ in style. Some evaluate the evidence witness by witness; others issue by issue with the link of each witness with the issue, and then arrive at the conclusion. Whichever style a Judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation.” See also NDENUJUO vs. THE STATE (2020) LPELR (49844) 1 at 12-14, ADENEKAN vs. THE STATE (2020) LPELR (50406) 1 at 23-26 and ABUBAKAR vs. THE STATE (2020) LPELR (50443) 1 at 10-20. PER OGAKWU, J.C.A.

WHETEHR R NOT THE DUTY OF THE TRIAL COURT IS TO EVALUATE EVIDENCE BEFORE IT

Let me iterate that the complaint under this issue is the evaluation of evidence by the lower Court. In EZEANI vs. FRN (2019) LPELR (46800) 1 at 17, evaluation of evidence was defined by the apex Court (per Okoro, J.S.C.) as follows:
“Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the findings of facts.” The law remains that where a trial Court properly discharges its primary duty in the appraisal of the facts and evaluation of the evidence before it, an appellate Court would have no justification and no business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where it is shown on appeal, and the appellate Court is satisfied, that a trial Court failed to properly evaluate the evidence before it, that the appellate Court would have the duty to intervene to re-evaluate or evaluate the evidence for the purpose of ascription of the appropriate probative value and reaching the proper decision. It is not the function of an appellate Court to retry the case on the evidence on record and set aside the decision of the trial Court merely because it would have reached a different conclusion of the evidence, so long as the trial Court fully and properly, no matter the style used, appraised and evaluated the evidence before it: ALI vs. THE STATE (1988) ALL NLR 1, GABRIEL vs. THE STATE (2010) 6 NWLR (PT 1190) 280, IGAGO vs. THE STATE (1999) 12 SCNJ 140 and ADENEKAN vs. THE STATE (supra). Now, are the diacritical circumstances of this matter such for an appellate Court to interfere with the evaluation of evidence and conclusions arrived at by the lower Court? We will find out in a trice. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On the 23rd day of December, 2014 at about 9.00pm; there was a robbery at a shop at the Federal Housing Estate, Emuren Junction, Ijebu-Ode. One of the robbers approached the PW2 at her shop and inquired about the cost of a bowl of rice. The PW2 told him the cost and directed him to her shop assistant who would make the sale. The robbers then shot into the air and carried out their operation, robbing the PW2 and PW3, a customer who was at the shop at the material time. Luck however ran out on the Appellant as he was apprehended, while the other robbers escaped. The PW2 and PW3, the victims of the robbery identified the Appellant from a mark on his face, which they said they saw clearly during the robbery. This is the case made out by the prosecution. The Appellant’s case, on the other hand, is that he had gone to buy recharge card when he heard shouts of thief, thief with people running. He equally ran but some people arrested him and started beating him that he was one of the thieves. He maintained that he was arrested in the afternoon of 23rd December, 2014 and that he knew nothing

about the robbery.

The Appellant was then arraigned before the High Court of Ogun State in CHARGE NO. HCJ/11C/2016: THE STATE vs. OJO AINA on an Information which preferred three counts of Conspiracy to Commit Armed Robbery, Armed Robbery and Attempted Armed Robbery contrary to the provisions of Sections 1 (2) (a), 2 (1) and 6 (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. The Appellant pleaded not guilty to the offences charged and the matter went to trial. The Prosecution called three witnesses, while the Appellant testified in his defence and did not call any witness. In its judgment, the lower Court convicted the Appellant as charged and sentenced him to death. The Appellant being dissatisfied with the judgment appealed against the same. The judgment of the lower Court which was delivered on 15th June 2017 is at pages 65-70 of the Records, while the Notice of Appeal which was filed on 28th July 2017 is at pages 71-74 of the Records.

In prosecution of the appeal, the Records of Appeal were compiled and transmitted on 17th April 2019, but deemed as properly compiled and transmitted on

8th July 2020. Briefs of argument were filed and exchanged, which briefs were adopted and relied upon by learned counsel at the hearing of the appeal. The Appellant’s Brief was filed on 7th July 2020, but deemed as properly filed on 8th July 2020. The Appellant further filed a Reply Brief on 7th September, 2020, which was deemed as properly filed on 8th September 2020. The Respondent filed its brief of argument on 17th July 2020.

The Appellant formulated two issues for determination as follows:
“1. Whether the evaluation of evidence by the trial Court was not in breach of the principles of fair hearing (Issue distilled from Grounds 1, 2, 3 and 4 of the Grounds of Appeal).
2. Whether the trial Court was right to have dismissed the defence of alibi raised by the Appellant (Issue distilled from ground 5 of the Grounds of Appeal).”

The Respondent equally distilled two issues for determination, namely:
“1. Whether the evaluation of evidence by the trial Court in this case was in breach of the principles of fair hearing?
2. Whether the trial Court was wrong in rejecting the defence of alibi raised by the

Appellant in this case?”

The issues for determination crafted by the parties are the same two and tuppence. This being so, and since the issues are rooted in the grounds of appeal, it is on the basis of the issues as nominated by the Appellant that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE NUMBER ONE
Whether the evaluation of evidence by the trial Court was not in breach of the principles of fair hearing.

SUBMISSIONS OF THE APPELLANT’S COUNSEL:
The Appellant submits that the lower Court has the duty to evaluate the evidence adduced, which evaluation is not to be done summarily. The cases of OLAKUNLE vs. THE STATE (2018) 6 NWLR (PT 1614) 91 at 144 and OKOH vs. NIGERIAN ARMY (2018) 6 NWLR (PT 1614) 176 at 187 were referred to on the procedure for evaluation of evidence and it was stated that the lower Court evaluated the evidence of the Respondent but failed to evaluate the evidence of the Appellant. It was contended that this was improper evaluation of evidence and a breach of the right of fair hearing, since the Appellant’s evidence was not put on the scale of justice to

be weighed. The cases of USMAN vs. GARKE (2003) 9 MJ.S.C. 115 at 132 and OKOH vs. NIGERIAN ARMY (supra) were relied upon.

It was posited that it was only at the tail end of the judgment that the lower Court mentioned the evidence of the Appellant in passing, which was a mere restatement of the evidence and not evaluation of the same and therefore occasioned a breach of fair hearing vide ABUBAKAR vs. JOSEPH (2008) 13 NWLR (PT 1104) 307 at 360 and AROBIEKE vs. N.E.L.M.C. (2018) 5 NWLR (PT 1613) 383 at 397. It was further contended that the lower Court in its evaluation of the evidence drew wrong conclusions and relied on the Appellant’s retracted confessional statement to hold that the Appellant was at the scene of crime and was arrested thereat. It was opined that the lower Court did not make any finding that the Appellant actually made the retracted statement and also made no finding that the retracted statement was corroborated by other evidence. The cases of NWEZE vs. THE STATE (2018) 6 NWLR (PT 1615) 197 at 213 and GBADAMOSI vs. THE STATE (1992) 9 NWLR (PT 266) 465 at 498 were cited in support.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the evaluation of evidence is the duty of the Court of trial which puts the evidence adduced on the imaginary scale of justice to determine in whose favour the balance tilts and preponderates. The cases of UGBOGBO vs. THE STATE (2016) LPELR – 42225 (CA), AMUNEKE vs. THE STATE (1992) NWLR [no volume stated] (PT 217) at 347, ONISILE vs. OJO APO (2013) LPELR 22330, EDWIN vs. THE STATE (2019) LPELR – 46896 (SC), EYIBOH vs. ABIA (2012) LPELR 20607, MOGAJI vs. ODOFIN (1978) 4 SC 91 at 98 and SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 were referred to. It was stated that where the trial Court has properly examined and evaluated the evidence, an appellate Court will not interfere vide FRN vs. IWEKA (2011) LPELR 9350 and ROBERT vs. OLALEYE (2010) LPELR 4901.

The Respondent, referring to the cases of ROBERT vs. OLALEYE (supra) and ALAKE vs. THE STATE (1992) 9 NWLR (PT 265) [no page stated] on what evaluation of evidence entails, stated that there is a difference between summary of evidence and evaluation of evidence; and that a mistake in summary of evidence which has not been shown to have materially

affected the evaluation would be a mere slip and inconsequential to the decision reached. The cases of UGBOGBO vs. THE STATE (supra), GOLAN vs. MOHAMMED (2018) LPELR and GILSOD ASSOCIATES LTD vs. ALGON (2011) LPELR-4197 were called in aid. It was asserted that the lower Court evaluated the evidence of the Appellant and the Respondent before arriving at its decision and that the failure to summarize or review the evidence of the Appellant, in the same manner as it did that of the Respondent did not affect the evaluation of the defence of alibi raised by the Appellant vide UGBOGBO vs. THE STATE (supra) and GOLAN vs. MOHAMMED (supra). It was further stated that the Appellant did not show the evidence that was improperly evaluated, and how if corrected, the decision would be different. The cases of NKEBISI vs. THE STATE (2010) 5 NWLR (PT 1188) 471 or (2010) LPELR 2046 and ADELUMOLA vs. THE STATE (1988) 1 NWLR (PT 73) 683 at 691 or (1988) 3 SCNJ (PT 1) 68 at 74 and 75 were called in aid.

APPELLANT’S REPLY ON LAW
The Appellant submits in the Reply Brief that an appellate Court has a duty to also evaluate the evidence in order to establish the

failure by the lower Court to properly evaluate the evidence as a result of which it arrived at a perverse conclusion. The cases of NNADOZIE vs. MBAGWU (2008) 3 NWLR (PT 1074) 363, BAREWA PHARM. LTD vs. FRN (2019) 9 NWLR (PT 1677) 331 and MTN (NIG) COMM LTD vs. CORPORATE COMM INV. LTD (2019) 9 NWLR (PT 1678) 427 were referred to. It was posited that the Respondent’s resort to the semantics of the distinction between summary of evidence and evaluation of evidence does not derogate from the fact that the Respondent admitted that the lower Court failed and refused to evaluate the evidence presented by the Appellant. It was opined that a fact admitted needs no further evidence to be proved or established vide ODEBUNMI vs. OLADIMEJI (2012) LPELR – 15419 (CA).

RESOLUTION OF ISSUE NUMBER ONE
At the core of the disceptation under this issue is the evaluation of the evidence by the lower Court. The Appellant has further argued that the lower Court was wrong in utilizing the retracted confessional statement in arriving at a conviction, without first having made a finding that the Appellant actually made the retracted statement and a finding that

there was other evidence which corroborated the facts in the retracted statement. I would first consider the Appellant’s contention as it relates to the retracted confessional statement in order to ascertain if it ought properly to form part of the evidence which is to be evaluated, or if as contended by the Appellant, the lower Court was wrong to have relied on the same.

Now, in the course of the testimony of the Investigating Police Officer (IPO), the PW1, the prosecution sought to tender the extra-judicial statement volunteered by the Appellant. The defence objected to the admissibility of the statement on the ground that the statement was not made voluntarily. (See page 37 of the Records). Consequent upon this, the lower Court conducted a voir dire, during which it became evident, upon the Appellant retracting the statement, that the Appellant’s contention was actually that he did not make any statement at all; whereupon the voir dire was discontinued and the statement which was volunteered in Yoruba language and the English translation were admitted in evidence as Exhibits A and A1.

Now, it is rudimentary law that where an objection

to the admissibility of a statement is premised on an outright denial of having made the statement, it amounts to a retraction of the statement since it raises the question of non est factum and the statement will be admissible in evidence without the necessity of conducting a voir dire; the only issue will be the weight to attach to such a retracted statement: IBEME vs. THE STATE (2013) LPELR (20138) 1 at 5, ODEH vs. FRN (2008) ALL FWLR (PT 424) 1590 at 1618 and LASISI vs. THE STATE (2013) LPELR (20183) 1 at 28-29. The objection to a statement on the basis of non est factum is a question of fact which is determined at the conclusion of the trial as the statement even though retracted is admissible in evidence vide AIGUOREGHIAN vs. THE STATE (2004) 3 NWLR (PT 860) 367 at 402, MADJEMU vs. THE STATE (2001) 25 WRN 1 at 12-13, 23 and 25, R vs. IGWE (1960) 5 FSC 55 or (1960) SCNLR 158, EHOT vs. THE STATE (1993) 5 SCNJ 65, OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39, EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385 at 431, ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20 and KAREEM vs. FRN (2001) 49 WRN 97 at 111.

It is equally abecedarian law

that an accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93.

that the lower Court did not make a finding that he actually made the statement and that there was no other evidence corroborating the confessional statement, is effectively a contention that the lower Court did not apply the requisite tests before relying on the confessional statement as part of the evidence on which it convicted. Now, could this contention be correct? We turn to the Records.

In the judgment at pages 67-68 of the Records, the lower Court stated as follows:
“The prosecution’s case is hinged mainly on the eye witness account of the PW1 and PW2 and Exhibits A & A1 which are the statements of the accused person, the accused however denied making any statement to the police. The statement of the accused person is partly confessional. The duty of the Court in this situation is to test the veracity or otherwise of such statement by comparing it with facts and circumstances outside the statement which will then be regarded as correct i.e. the statement will be subjected to scrutiny by the Court in order to test its truthfulness or otherwise with other available evidence and circumstances of the case, see the case of

FOLORUNSHO KAZEEM V. THE STATE (2009) 1 ALL FWLR PT 465 pg 1749 at 1755 holding 7. See also the case of IKECHUKWU OKOH V. THE STATE (2009) ALL FWLR PT 453 pg. 1358 at 1364 holding 6. Evidence of the PW2 and PW3 is that the accused person approached the PW2 in her shop and requested to buy rice, at that point, she had a good look at him and conversed with him, the 3rd PW also had a good look at him at this point for they both claimed that the place was well lit, he brought out a gun and fired in the air, the other members of his gang came in with cutlasses, the PW2 was able to escape while PW3 was forced to lie face down, the other accused persons were able to run away but the accused person was arrested at the scene of crime. PW2 and PW3 were able to recognize the accused person because of the mark on his face.
The accused person in his Statement stated that on the 23/12/2014 at about 6p.m, he went with the others at large to some places, then they moved to Ikoto with two motorcycles, the other three gang members crossed the road but he stayed with the motorcycles that not long, he heard people shouting armed robbers! Armed robbers! And some people were

coming to the direction where they heard sound of robbers, he moved with the crowd, but when he got to where he packed his motorcycle, it was not there, those who came out on hearing the shout of robbers! looked at his face and said that he was one of the robbers, but he replied that he was not one of them, the crowd called on the Police and he was arrested and taken to the Police Station, he denied that they use their motorcycle to rob and also that he was not informed of the movement of the gang but that he was the one who rode the motorcycle that took them to the woman’s shop.
Having compared the confessional statement of the accused person, with facts and circumstances outside the statements, it is my findings that the accused person made Exhibits A & A1, his statement showed that he was at the scene of the crime and that he was arrested at the scene.”

The above pericope from the judgment of the lower Court is lucent that the lower Court applied the correct principles of law in its approach to the retracted confessional statement. Accordingly, the lower Court was justified in including the said statement as part of the evidence

on which the prosecution sought to discharge the burden on it of proving the offences charged beyond reasonable doubt. We segue to consider whether the lower Court properly evaluated the evidence or if as argued by the Appellant, the lower Court arrived at perverse conclusions and failed to evaluate his evidence thereby breaching his right to fair hearing.

It is hornbook law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial which has the unparalleled advantage of hearing, seeing and watching the witnesses testify and observing their demeanour. See KIM vs. THE STATE (1992) 4 NWLR (PT 233) 17, and OKOH vs. NIGERAN ARMY (supra) at 187. The Appellant has strongly argued that the lower Court failed to evaluate his evidence but only evaluated the Respondent’s evidence and made a cursory reference to the Appellant’s evidence at the tail end of the judgment, without evaluating the same. It is trite law that the writing of a judgment is an art and that there are several ways of going about it. Indeed, there could be as many variations as there are Judges. Whatever variation adopted, the

important thing is that all the evidence adduced must be considered. There are no legal prescriptions as to any particular format to adopt in writing a judgment. See ONUOHA vs. THE STATE (1988) 3 NWLR (PT 83) 460 at 464, AWOPEJO vs. THE STATE (2001) 12 SCNJ 293 at 302 and NDUKWE vs. THE STATE (2009) LPELR (1979) 1 at 53-56. In ADAMU vs. THE STATE (1991) LPELR (73) 1 at 11-12, Belgore, J.S.C. (later CJN) stated:
“(A) trial Judge has a duty to consider all the evidence before him, the more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt… The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty, the Judge must evaluate all the evidence. It is not the justice of a case if a Judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons must differ in style. Some evaluate the evidence witness by

witness; others issue by issue with the link of each witness with the issue, and then arrive at the conclusion. Whichever style a Judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation.”
See also NDENUJUO vs. THE STATE (2020) LPELR (49844) 1 at 12-14, ADENEKAN vs. THE STATE (2020) LPELR (50406) 1 at 23-26 and ABUBAKAR vs. THE STATE (2020) LPELR (50443) 1 at 10-20.

The law remains that where a trial Court properly discharges its primary duty in the appraisal of the facts and evaluation of the evidence before it, an appellate Court would have no justification and no business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where it is shown on appeal, and the appellate Court is satisfied, that a trial Court failed to properly evaluate the evidence before it, that the appellate Court would have the duty to intervene to re-evaluate or evaluate the evidence for the purpose of ascription of the appropriate probative value and reaching the proper decision. It is not the function of an appellate Court to retry the case on the evidence on record and set aside the decision of the trial Court merely because it would have reached a different conclusion of the evidence, so long as the trial Court fully and properly, no matter the style used, appraised and evaluated the evidence before it: ALI vs. THE STATE (1988) ALL NLR 1, GABRIEL vs. THE STATE (2010) 6 NWLR (PT 1190) 280, IGAGO vs. THE STATE (1999) 12 SCNJ 140 and ADENEKAN vs. THE STATE (supra). Now, are the diacritical circumstances of this matter such for an appellate Court to interfere with the evaluation of evidence and conclusions arrived at by the lower Court? We will find out in a trice.

This is criminal matter. The law is ensconced like the Rock of Gibraltar that, in criminal cases, the burden is on the prosecution to prove its case beyond reasonable doubt.

This legal burden, coupled with the constitutional presumption of innocence which enures in favour of an accused person necessarily connotes that there is a distinction between evaluation of evidence in civil cases and evaluation of evidence in criminal cases. Civil cases are determined on the preponderance of evidence, while criminal cases are based on proof beyond reasonable doubt. The legal position was explicitly stated by Nnaemeka Agu, J.S.C. in these words in KIM vs. THE STATE (1992) LPELR (1691) 1 at 28-29:
“… in civil cases the only way to decide which of the evidence called by the plaintiff and the defendant is more probable is by putting each of them on either side of an imaginary balance and weighing them together … This derives from the fact not only that in civil cases the onus of proof keeps on shifting, but

also that in civil cases it is discharged on a balance of probabilities. In criminal cases, the position is different. Because, except in limited exceptions…, the onus is all through on the prosecution – a very high onus at that – the prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt.”
Learned counsel in this matter and on both sides of the divide have proffered their submissions as though the evaluation of evidence in this matter is the same as in a civil matter, with their submission that the evidence is placed on the imaginary scale of justice to see which side of the evidence outweighs the other on the scale and in whose favour the balance of the scale tilts. To boot, they have relied on decisions of the apex Court which so decided as though criminal cases were decided on how the evidence preponderates on the scale of justice. See for instance EDWIN vs. THE STATE (supra) and OKOH vs. NIGERIAN ARMY (supra).
In EBENEHI vs. THE STATE (2009) LPELR (986) 1 at 14, Ogebe, J.S.C. relying on the earlier decision of the Supreme Court in

IBRAHIM vs. THE STATE (1991) 4 NWLR (PT 186) 399 at 424 asseverated:
“In civil cases, the question is as to weight of evidence. The inquiry is which of the two sets of evidence on an issue outweighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on a balance.”

Let me hasten to state that the extract from IBRAHIM vs. THE STATE (supra) redacted in EBENEHI vs. THE STATE (supra) is from the dissenting judgment of Nnaemeka-Agu, J.S.C. Instructively however, the dissent in the case was not on the distinction between evaluation of evidence in criminal and civil cases. It was only on the very narrow question of whether a horsewhip,

which was used for robbery in the said case, is an offensive weapon.

In OKOH vs. NIGERIAN ARMY (supra), which was a rape case, Eko, J.S.C. stated inter alia at page 188:
“The procedure for the evaluation of evidence on any issue before ascribing a probative value to it … (is that) the Judge considers the totality of the evidence of the parties on an issue. He puts the evidence on either side of an imaginary scale to see which side of the evidence outweighs the other on the imaginary scale.”
In EDWIN vs. THE STATE (supra) at 10-11, Muhammad, J.S.C. (now CJN) quipped:
“… the correct position of the law on evaluation of evidence by trial Courts that before reaching a conclusion, the learned trial Judge is required by practice to set up an imaginary scale wherein he places the evidence adduced by the plaintiff or prosecution, as the case may be, on one side of the scale and equally places the evidence adduced by the defendant/accused, as the case may be, on the other side of the scale and weigh both together to consider the probative value in determining where the imaginary scale tilts and

preponderates.”

It is instructive that in the restatement of the law reproduced above in bothOKOH vs. NIGERIAN ARMY and EDWIN vs. THE STATE, the case of MOGAJI vs. ODOFIN (supra) was referred to.

Apposing the dicta in KIM vs. THE STATE (supra) and EBENEHI vs. THE STATE (supra) with the dicta in OKOH vs. NIGERIAN ARMY (supra) and EDWIN vs. THE STATE (supra); it is effulgent that there is some uncertainty as to whether Courts of trial in evaluation of evidence in criminal cases are to proceed on the basis of considering how the evidence preponderates on the imaginary scale of justice, or if the Court needs not weigh the evidence on the scale of justice. Without a doubt, the apex Court, will at the earliest opportunity when the opportunity presents itself clear the air on this uncertainty. Let me festinate and make an advance apology if it transpires that there is actually no uncertainty and that I may merely be crying wolf where there is none!

Be that as it may, given the fact of the recognition by the law that there are variations in the art of judgment writing, is the Appellant correct in his contention that the lower Court failed to

evaluate his evidence? As earlier stated, the Appellant testified in person and did not call any other witness. The Appellant’s testimony in defence is at pages 47-48. In a coda, the Appellant denied being one of the robbers and that an unnamed woman stated so; that he did not make any statement to the Police and he raised an alibi for the first time while testifying in Court. From the Records, the lower Court may not have summarized the Appellant’s testimony but it did evaluate the evidence adduced by the Appellant. On the question of whether he was one of the robbers and if he was identified as such, the lower Court held at page 57 of the Records that the PW2 and PW3, the victims of the robbery had a good look at the Appellant and conversed with him and that they were able to recognise the Appellant because of the mark on his face. On the veracity of the retracted confessional statement, I have already held that the lower Court applied the requisite tests and found other evidence which make it probable that the confession is true. On the alibi raised, the lower Court evaluated the same and held that it was raised for the first time during trial,

when it ought to have been given during the investigation of the case and not during the hearing of evidence.

Having insightfully considered the judgment of the lower Court, I am not in any doubt whatsoever that the lower Court, in its own peculiar style, duly evaluated the evidence of the Appellant in defence of the action. There was consequently no breach of the principles of fair hearing. I iterate that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. The lower Court having properly discharged this duty and arrived at findings which are not perverse, it is not the business of this Court to substitute its own views for the views of the trial Court. See EDWIN vs. THE STATE (supra) at 11, BASHAYA vs. THE STATE (1998) LPELR (755) 1 at 32-33 and FRN vs. IWEKA (2011) LPELR (9350) 1 at 59. In a summation, this issue number one is resolved against the Appellant.

ISSUE NUMBER TWO
Whether the trial Court was right to have dismissed the defence of alibi raised by the Appellant.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that he narrated his entire

movement to the Police but that the Police failed to investigate his narration or take him to the scene of the crime. It was contended that the Respondent failed to cross examine the Appellant on the alibi raised and that having failed to cross examine on the issue, it was deemed admitted vide OLOWU vs. BUILDING STOCK LTD (2018) 1 NWLR (PT 1601) 343 at 399. It was asserted that the Appellant gave sufficient particulars of his alibi which ought to have compelled the prosecution to investigate the same. The case of ADEYEMI vs. THE STATE (2018) 5 NWLR (PT 1613) 482 at 459 [sic] was relied upon. The Appellant maintained that his alibi, not having been investigated, was uncontroverted and uncontradicted evidence which the lower Court ought to have acted upon as availing the Appellant. The cases of CITEC INT’L ESTATE LTD vs. E. INT’L INC. ASSOCIATES (2018) 3 NWLR (PT 1606) 332 at 360, ADELANI vs. THE STATE (2018) 5 NWLR (PT 1611) 18 at 54, OLOWOYO vs. R. (2012) NWLR [no volume stated] (PT 1329) at 388 and OLAKUNLE vs. THE STATE (2018) 6 NWLR (PT 1614) 91 at 112 were referred to.

The Appellant conclusively submitted that the offences charged were not

proved beyond reasonable doubt, and that a Court ought to consider every defence raised no matter how stupid or weak. The lower Court, it was posited, was wrong not to have considered and evaluated the alibi and instead glossed over it. The case of UWAEKWEGHINYA vs. THE STATE (2005) 1 NCC 369 at 381 was called in aid.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent argues that the Appellant did not raise his alibi timeously in his statement to the Police and so there was nothing for the Police to investigate. It was asserted that the alibi was not raised at the earliest opportunity with particulars for the police to investigate the same vide SANMI vs THE STATE (2019) LPELR – 47418 (SC), AYAN vs. THE STATE (2013) LPELR – 20932 (SC) and DOGO vs. THE STATE (2001 3 NWLR (PT 699) 192. It was contended that the burden of proving alibi rests on the accused person and that he must be specific and precise as to where he was, and that an alibi raised at trial would be unavailing. The cases of OCHEMAJE vs. THE STATE (2008) 15 NWLR (PT 1109) 57 at 90, TANKO vs. THE STATE (2008) 16 NWLR (PT 1114) 597 at 622, ORISAN vs. PEOPLE OF LAGOS STATE

(2019) LPELR-46509 (CA) and IMEPURUNGU vs. THE STATE (2019) LPELR – 47047 (CA) were cited in support.

It is the further submission of the Respondent that it is the Appellant who is caught by the principle of accepting evidence that was not cross examined upon, as the Appellant failed to cross examine the PW1 on the alibi he alleged was not investigated by the Police. A defendant, it was stated, has the duty to challenge all the evidence it wishes to dispute by cross examination, instead of just waiting to call evidence on the issue after the other party has closed his case. The cases of OFORLETE vs. THE STATE (2000) LPELR 2270 SC, LAWAL vs. THE STATE (2010) LPELR – 4622 (CA), ONUCHUKWU vs. THE STATE (2017) LPELR – 41568 (CA), OKOSI vs. THE STATE (1989) 2 SCNJ 183 among other cases were referred to. It was conclusively asserted that the evidence of the PW2 and PW3 placed the Appellant at the scene of crime and that the lower Court was correct in so holding. The ingredients of the offences charged, it was maintained, were proved beyond reasonable doubt.

APPELLANT’S REPLY ON LAW
The Appellant submits in his Reply

Brief, that he informed the persons who arrested him at the time of his arrest, that he was where he went to buy clothes, which is different from the scene of crime. It was opined that the submissions of learned counsel cannot replace the evidence vide SUNDAY vs. THE STATE (2018) 1 NWLR (PT 1600) 251. It was asserted that there was ample evidence that the Appellant informed the Police about his whereabouts and that based on Sections 131, 135 and 139 of the Evidence Act, as well as the constitutional presumption of innocence in Section 36 (5) of the Constitution, the burden of proof is on the prosecution and that it is not for the Appellant to re-raise particulars of his alibi during cross examination of the PW1.

RESOLUTION OF ISSUE NUMBER TWO
Prefatorily, in the resolution of issue number one, I held that the lower Court evaluated the defence raised by the Appellant in his evidence and in consequence held that the alibi raised by the Appellant during trial was an afterthought or belated. Now, alibi simply means elsewhere other than the scene of crime at the relevant time: ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190.

In criminal trials, where

the defence of alibi is raised at the earliest opportunity, the prosecution has the burden to investigate it and disprove the same. It is not for the defendant to establish his alibi to the satisfaction of the Court; it is for the prosecution to disprove the alibi vide OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 20-21.

In aliis verbis, alibi is a defence based on the physical impossibility of the guilt of an accused person by placing the accused person in a location other than the scene of crime at the relevant time, such that the accused person could not be the person who committed the offence. See OKOSI vs. THE STATE (1989) CLRN 29 at 48 and OLATINWO vs. THE STATE (2013) LPELR (19979) 1 at 30-31.

The law is that notice of intention to raise an alibi must be given. This is normally done at the first possible opportunity by a suspect in answering to a charge by the Police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police: EZE vs. THE STATE (1976) 1 SC 125 at 130, OZAKI vs. THE STATE (1990) LPELR (2888) 1 at 17 and NOMAYO vs. THE STATE (2018) LPELR (44729) 1 at 16-17.

The Appellant contends that his alibi was not investigated and that the Respondent failed to cross examine on the alibi at the trial, as a result of which the alibi raised is admitted. In the first place, while the alibi raised for the first time in Court, as in this case, was not raised in a timely manner as it does not afford the Police the opportunity of investigating the same; it is not even the law that an alibi raised and not investigated translates to the acceptance of the alibi as the gospel truth, if the evidence adduced by the prosecution at the trial effectively fixed the accused person at the scene of crime or where the accused person was apprehended at the scene of crime at that material time such that there will be no need to investigate the alibi. I have already held that the lower Court correctly evaluated the evidence and held that the testimony of the PW2 and PW3 fixed the Appellant at the scene of crime at the material time. In NJOVENS vs. THE STATE (1973) LPELR (2042) at 52, Coker, J.S.C. held:
“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the

crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”
See also MADAGWA vs. THE STATE (1988) LPELR (1804) 1 at 56-57, ADEBIYI vs. THE STATE (2016) LPELR (40008) 1 at 19-20, NOMAYO vs. THE STATE (supra), NJOKU vs. THE STATE (2021) LPELR (53076) 1 at 42 and THE STATE vs. EKANEM (2016) LPELR (41304) 1 at 10-11.
Given the settled state of the law as it relates to the defence of alibi, the fact that the alibi was not raised at the earliest opportunity during the investigation stage, and the fact that the prosecution’s evidence effectively fixed the Appellant at the scene of the crime at the material time having been properly identified by PW2 and PW3 as one of the robbers; it is of no consequence that the Respondent did not cross examine the Appellant on the alibi when he

testified. The investigation of the alibi is not at the trial stage but during the stage of investigation. Concomitantly, the lower Court was right to have dismissed the Appellant’s alibi raised for the first time during trial for being an afterthought or belated. This issue number two is resolved in favour of the Respondent.

To now put this judgment to bed, the issues for determination have both been resolved against the Appellant. This signposts is that the appeal is bereft of merit. Accordingly, the appeal fails and it is hereby dismissed. The decision of the lower Court, Coram: Asenuga, J. in CHARGE NO. HCJ/11C/2016: THE STATE vs. OJO AINA delivered on 15th June, 2017 embodying the conviction and sentence of death imposed on the Appellant is hereby affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered.

Having also read the Record of Appeal as well as the Briefs filed on behalf of both parties to the Appeal, I agree with the reasons given and the conclusion reached by my Lord that the appeal lacks merit.

This appeal is also dismissed by me and I affirm

the judgment of the Trial Court.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. I agree with the reasoning and conclusion reached therein that this appeal lacks merit and should be dismissed.

It is trite that an essential ingredient of the offence of armed robbery which must be proved beyond reasonable doubt is that the accused person was the robber or one of the armed robbers. He must be identified as the one or one of those who perpetrated the robbery. The identity of an accused person can be established vide the evidence of an eyewitness. Where the evidence of an eyewitness is believed, it is sufficient to sustain the conviction of an accused person. See AKINLOLU VS. STATE (2016) 2 NWLR (pt. 1497) 503, AGU VS. STATE (2017) 10 NWLR (pt. 1573) 171, OLAKUNLE VS. STATE (2017) LPELR – 48000 SC and AKALEZI VS. STATE (1993) 2 NWLR (pt. 273) 1.

In the instant appeal, PW1 and PW2, who were victims of the robbery and had a close encounter with the Appellant in the course of the robbery operation gave an on the spot narration of the event and identified

the Appellant as one of the robbers. The learned trial Judge relied on their evidence amongst others to pin the Appellant as one of those who carried out the robbery. The finding of the learned trial Judge on the identity of the Appellant has its footing in the evidence at the trial and backed by law. There is therefore no reason to interfere with it.

It is for the foregoing and the more elaborate reasons marshalled in the lead judgment that I too find no merit in this appeal and also dismiss it.

Appearances:

Aderemi Oguntoye, Esq. (with him, Abraham Oladipupo, Esq.) For Appellant(s)

M. Adebayo, Esq., Chief State Counsel, Ministry of Justice, Ogun State For Respondent(s)