ALANI v. STATE
(2022)LCN/16177(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/270C/2021
Before Our Lordships:
Folasade Ayodeji Ojo Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
HAMMED ALANI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
I believe the starting point is to restate the settled position of the law that a vital element of our criminal jurisprudence is that the Prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. In OGUNDIYAN VS. STATE (1991) 1 NSCC 448, also reported in (1991) LPELR–2333 (SC) AT PAGES 13–14, the Supreme Court per OBASEKI, J.S.C said:
“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe Vs. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ (Nigeria) delivering the judgment of the Court on the standard of proof said:
“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin B. in Rex V. White 4 F &F 383 at 384 where the learned Baron said: –
“In order to enable you return a verdict against any person, you must be satisfied beyond reasonable doubt of his guilt and as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability, your duty is to acquit”.
Proof beyond reasonable doubt connotes such proof as precludes every reasonable proposition except that which it intends to support. See OLADELE VS. NIGERIAN ARMY (2004) 6 NWLR (PT 868) 166 179. It also connotes sufficiency of evidence. See NSOFOR V. STATE (2004) 18 NWLR (PT 905) 292 305. A case is proved beyond reasonable doubt if the evidence against the accused person is strong as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”. The cases on this point are many but I shall cite a few. See SABI VS. STATE (2011) 14 NWLR (PT. 1268) 421; IWUNZE VS. FEDERAL REPUBLIC OF NIGERIA (2013) 1 NWLR (PT. 1324) 119; NJOKU VS. STATE (2013) 2 NWLR (PT. 1339) 548; OSUAGWU VS. STATE (2013) 5 NWLR (PT. 1347) 360AND AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) 589.
The legal terminology “Proof Beyond Reasonable Doubt” does not mean proof to a scientific certainty or with mathematical exactitude. See THE STATE VS. AZEEZ (2008) 4 SC 188. It does not belong to the realm of heavenly trials. See SHANDE VS. STATE (2005) 12 MJSC 152 and does not mean proof beyond all shadow of doubt. See JOHN AGBO VS. STATE (2006) 1 SC (PT. 11)73 AND MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 AT 373. All that the Prosecution needs to do is establish the guilt of the accused with compelling and conclusive evidence. See DIBIE VS. STATE(2007) 3 SC (PT. 1)176;AKALEZI VS. STATE (1993) 2 NWLR (PT. 273)1; ONAKOYA VS. FRN (2002) 11 NWLR (PT. 779) 595; AGBO VS. STATE (2006) 6 NWLR (PT. 997) 545 AND UWAGBOE VS. STATE (2007) 6 NWLR (PT. 1031) 606.
The law is trite that the standard of proof required in criminal cases, is static and does not shift. See EHIMIYEIN VS. STATE (2016) 16 NWLR (PT. 1538) 173 AT PAGE 198 PARAGRAPHS E – F where the Court held thus:
“I agree with Learned Counsel for the Respondent that this standard of proof in a criminal trial is static and does not shift. See ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT. 61)538; IKEM VS. STATE (1985) 1 NWLR (PT. 2)378; MOSES JUA VS. THE STATE (2010) 4 NWLR (PT. 1184)217 AT 243”. PER OJO, J.C.A.
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
On the Appellant’s conviction for Armed Robbery, it is settled that for an offence of Armed Robbery to be established against him, the Respondent had the duty to prove the following ingredients:
i) That there was robbery;
ii) That the robbery was an armed robbery and
iii) That the accused person was the armed robber or was among the armed robbers.
See ADELEKE VS. STATE 2013 6 NWLR (PT. 1381) 556 AT P. 582–583 PARAS G–A;OTTI VS. THE STATE (1991) 8 NWLR (PT. 207) P.103 AT P.118 PARAS C–D AND STATE VS. AJAYI (2016) 14 NWLR (PT. 1532) P.196 AT 227 -228 PARAS G–A.
The position of the law is that all the above ingredients must be proved beyond reasonable doubt by the Respondent before it can secure conviction. PER OJO, J.C.A.
THE POSITION OF LAW ON PROVING THE OFFENCE OF “CONSPIRACY”
On the meaning of conspiracy, this Court held in JIMOH VS. STATE (2012) 3 NWLR (PT. 1286)177 AT 175 –176 PARAS G–A, as follows:
“Conspiracy means a meeting of the minds of conspirators. It consists of the intentions of two or more persons to do an unlawful act or to do a lawful act by unlawful means and conviction for conspiring is usually based on circumstantial evidence”.
Still on the proof of conspiracy, this Court in YAKUBU VS. STATE (2014) 8 NWLR (PT. 1408)111 AT 123 PARAS F–H held thus:
“To prove conspiracy, the prosecution must prove the following:
i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement as done by one or more of the parties in furtherance of the agreement.
iii. Specifically that each of the accused persons individually participated in the conspiracy”.
See also USUFU VS. STATE (2007) 1 NWLR (PT. 1020) 44 AT 115 PARAS F–H, OBASANJO-BELLO VS. FEDERAL REPUBLIC OF NIGERIA (2011) 10 NWLR (PT. 1256) 605 AT 626 PARAS B–C. PER OJO, J.C.A.
WHETHER OR NOT WHEN AN ACCUSED PERSON MAKES AN EXTRA-JUDICIAL STATEMENT ADMITTING THE COMMISSION OF AN OFFENCE WITH WHICH HE IS CHARGED, THAT STATEMENT WILL STILL BE CONSIDERED AND/OR TAKEN INTO ACCOUNT IN THE DETERMINATION OF HIS GUILT
Let me restate that whenever an accused person makes an extra-judicial statement admitting the commission of an offence with which he is charged, that Statement will still be considered and/or taken into account in the determination of his guilt notwithstanding that he gives evidence in Court to the contrary. See AKPAN VS. THE STATE (2000) 12 NWLR PG. 682 AT 692 AND ALLI DOGO VS.THE STATE (2013) VOL. 221 LRCN (PT. 1) 164 AT 170.
In EMOGA VS. THE STATE (1997) 7 SCNJ AT 518, the Supreme Court, per S. U. ONU, JSC stated as follows:
“It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he has a change of mind. The whole trial will be a mockery as aptly put by the Attorney-General of Ondo State and it would be dangerous to apply the principle of extra-judicial confession of accused person as it would open a flood gate of retracing of all Statements made by the accused persons before police officer”.
The law is settled that a Confessional Statement voluntarily made is the best evidence and can be relied upon to convict an accused person. See PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751)1620 PARAGRAPH B. It is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because it is from the horse’s mouth. See KASA VS. THE STATE (1994) 5 NWLR (PT. 344)269; GIRA VS. STATE (1996) LPELR–1322 (SC) AND ALO VS. STATE (2015) LPELR–24404 (SC). It must also be understood that if a suspect makes a free and voluntary confession that is direct and positive in his extra-judicial statement to the Police, that alone is sufficient to ground and support conviction without corroboration. See ASIMIYU ALARAPE & ORS. VS. THE STATE (2001) 5 NWLR (PT. 705) 79 AND OZANA UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Justice Oyo State sitting in Ibadan in SUIT NOS: I/103C/2016 BETWEEN THE STATE AND (1) HAMMED ALANI (2) WAHAB LATEEF (3) ABIOLA IFEDAYO delivered on the 25th day of June 2021.
The Appellant who was the 1st Defendant at the trial Court was along with two others arraigned, tried and convicted on a two Count Charge of Conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria, 2004.
A summary of facts leading to this appeal is that the Appellant, and his Co-defendants and some others now at large while armed with about three cut-to-size locally made pistols robbed one Toyin Olasunkanmi (PW1) at her shop where she sells cement and carted away some of her valuables including money. The Appellant and his gang members also robbed one Badmus Mohammed Taorid Olaseu PW2 at gunpoint and went away with valuables such as laptops, phones and other items he sold.
In its judgment at page 110 of the Record the trial Court concluded as follows:
“From the foregoing therefore, I resolve the two issues in favour of the prosecution and I hold that the prosecution has proved the guilt of the Defendants beyond reasonable doubt and I convict them of conspiracy to commit Robbery and Armed Robbery.
Furthermore, each of the Defendants is sentenced to 10 years imprisonment on the 1st count of conspiracy and 10 years imprisonment on the 2nd count of crime. The two terms are to run concurrently.”
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 13th August 2021 (See pages 111-117 of the Record). The Record of Appeal was transmitted on the 27th of September, 2021. The Appellant transmitted Additional Record of Appeal on 6th January 2022 which was deemed as properly compiled and transmitted on the 26th of January, 2022.
Parties filed their respective Briefs of Argument as follows:
1) Appellant’s Brief of Argument settled by Olusola Olorunfemi Esq. was filed on the 9th of November, 2021.
2) Respondent’s Brief of Argument settled by Yusuf Olatunji Ogunrinde was filed on 9/12/2021.
On the 26th of January, 2022 when this appeal was argued learned counsel representing both parties adopted and relied on their respective Briefs of Argument. While Appellant’s Counsel argued in favour of allowing the appeal that representing the Respondent submitted in favour of its dismissal.
Appellant’s Counsel formulated a sole issue for determination from the five grounds of appeal as follows:
“Whether having regards to the inconsistencies, speculations, distractions, material contradictions and abundant doubts in the case put forward by the Respondent the decision of the lower Court is not unreasonable.” (Grounds 1, 2, 3, 4, 5 of the Notice of Appeal)
Learned Counsel to the Respondent for his part also formulated the following lone issue for determination:
“Whether having regards to the circumstances of this case, the totality of the evidence on record and the position of the law, the lower Court was right to have held that the prosecution was able to prove the offences of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant”. (Grounds 1 to 5 of the Notice of Appeal)
I agree with the parties that only one issue has arisen for determination in this appeal. The issue for determination as modified by me is:
“Whether the trial Court was right when it held that the Respondent proved the offence of Criminal Conspiracy and Armed Robbery against the Appellant beyond reasonable doubt.”
Appellant’s Counsel submitted it is now elementary law that the burden of proof in criminal cases squarely rest on the Prosecution who must prove its case beyond reasonable doubt. He commended to us JUA VS. THE STATE (2007) LPELR-8759; ADEOTI VS.THE STATE (1998) 7 SCNJ 83; MUSA VS.THE STATE (2014) LPELR-24026; NASIR VS. THE STATE (1999) 2 NWLR (PART 589) 89; OFORLETE VS.THE STATE(2000) FWLR (PT. 12) 2081 AT 2097 PARA H; AND OSENI VS.THE STATE (2012) 5 NWLR (PT. 1293) 351 AT 385 PARAS B-D to support his submission.
He advocated that the offence of Armed Robbery (2nd Count in the Amended Charge) be considered before the 1st Count (Criminal Conspiracy) and relied on the case of LUKMAN OSETOLA & ANOR. VS. THE STATE (2012) 6 S.C (PT. IV) 148 where the Supreme Court held that the proper approach in an indictment which contains conspiracy charge and the substantive charge is to first deal with the latter, that is, the substantive charge and then proceed to see how far the Conspiracy Count has been made out.
In respect of the offence of Armed Robbery contrary to and punishable under Section 1 and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation of Nigeria 2004, learned Appellant’s Counsel submitted that the Respondent had a duty to prove that there was robbery or series of robberies; that the robbery or each robbery was an Armed Robbery; and, that the Appellant was one of those who took part in the Armed Robbery. He craved in aid of his submission BOZIN VS. STATE 2 NWLR (PT. 8) PAGE 465 AT 469; AMINA VS.THE STATE (1990) 6 NWLR (PT. 155) PAGE 125 AT 135; OKOSI VS. ATTORNEY-GENERAL BENDEL STATE (1989) 1 NWLR (PT. 100) PAGE 642; NWACHUKWU VS.THE STATE (1985) 1 NWLR (PT. 218); ANI VS. STATE (2003) 11 NWLR (PT. 83) PAGE 142 AND MORUFU BOLANLE VS.THE STATE (2005) 1 N.C.C. 342 AT 354.
Again, he commended to us the cases of OKOSUN VS. A.G. BENDEL STATE (1985) 11 SC 133, NWACHUKWU VS. THE STATE (1985) 3 NWLR (PT. 11) 218 AND ADEKOYA VS. STATE (2012) 3 SC 36 PAGES 56-57 PARAS 15-25 to support his submission that Armed Robbery is stealing plus violence, that before the Robbery, the suspect must steal something capable of being stolen and that any person in company of a person armed at the time of the robbery is also guilty of Armed Robbery.
It is further his submission that evidence adduced to prove the guilt of the accused may come through eye witness, the confession by the accused or circumstantial evidence that irresistibly point to the accused person as the perpetrator of the crime. He craved in aid of his submission the case of STATE VS. GAMBO (2019) 2 NWLR (PT. 1655) 117 AT 138.
On the evidence adduced by the prosecution in support of his case, he submitted same was full of material considerations. He urged us to note that where there are contradictions or lack of sufficient evidence the benefit of that doubt must be resolved in favour of the accused. He commended to us the case of IBEH VS. THE STATE (1997) 1 NWLR (PT. 484) 632 AT 661 (SC).
He specifically referred us to the evidence of PW1, PW2, PW3 and PW4 which he said were materially contradictory. He cited instances of such contradictions in Paragraphs 4.10-4.18 on pages 14 to 18 of his Brief. He submitted that even though it is not every contradiction that will lead to the reversal of judgment but where the contradictions are material (as in the instant appeal) same will occasion reversal of the judgment.
It is his further submission that none of those that allegedly arrested the Appellant and his Co-defendants was called to testify during trial; that no eyewitness other than PW1 was called; that the Respondent failed to prove the ingredients of Armed Robbery beyond reasonable doubt; that no motorcycle or particulars of motorcycle were presented before the lower Court to show that motorcycles were recovered from the Appellant and his co-defendants; and, that the evidence of the Appellant and his co-defendants that they do not know each other before being arrested was not discredited by the Respondent. He observed and urged the Court to tow his line of reasoning which is that the Appellant and his Co-defendants are victims of circumstance by being in a particular place at the wrong time.
Counsel urged us to note that apart from the cut-to-size locally made pistol admitted by the lower Court as Exhibit 1, there is no other tangible evidence that there was Armed Robbery on the day of the incidence; and, that there is doubt that the locally made cut-to-size pistol that was admitted in evidence was recovered from the Appellant and his Co-defendants since none of the people present at the place of their arrest gave evidence that at the time of their arrest, they were seen with guns or that guns were recovered from them. He cited ASUQUO WILLIAM VS. THE STATE (1975) 9-11 SC to support his submission that where there is inconsistency in the evidence of a witness, the evidence of that witness shall be treated as unreliable. He also cited ARISA VS. THE STATE (1988) 7 S.C. (PT. 1) 52 AT 60-61 PARA 40 AND OMINI VS. THE STATE (1999) 9 S.C. 1 AT 11 to support his submission that evidence found to be unreliable ceases to be relevant evidence.
He stressed that substantial part of the evidence of PW1, PW2, PW3 and PW4 is hearsay evidence; that Courts have been enjoined not to pick and choose which of the evidence of the Respondent’s witnesses to believe or disbelieve; that the trial Court was wrong to have picked and chosen which part of the evidence of the Respondent it believed. He further submitted that the evaluation of evidence and conclusion arrived at by the lower Court is perverse and should not be allowed to stand. He relied on BALOGUN & ORS. VS. AKANJI & ORS (1988) 2 S.C. in support of his submission.
On the meaning and essential ingredients of conspiracy, Counsel commended to us OYEDIRAN VS. THE REPUBLIC (1967) N.M.L.R. 122 AT 127-128; THE STATE VS. ADEMOLA BELLO & ORS (1989) 1 C.L.R.N. 377; KENNETH CLARK & ANOR. VS. THE STATE (1986) 4 NWLR (PT. 35) 381 AT 395; SAMSON AIGBE & ORS. VS. THE STATE (1976) 9-10 SC 77. He submitted that conspiracy is generally a matter of inference from the collateral circumstances of the case and cited ERIM VS. THE STATE (1994) 5 NWLR (PT. 364)352 AND ONOCHIE VS. REPUBLIC (1966) ALL NLR 82 to support his submission.
He further drew our attention to the point that the Appellant’s oral evidence before the lower Court is that his Confessional Statement was not voluntary and he did not know his other Co-defendants until when they met in Court and that he had no gun battle with the police. He urged us to note that there is nothing outside the Appellant’s Confessional Statement to show that it is true; that the Confessional Statement is not corroborated as far as it can be tested, that the facts stated therein are not true, that the Appellant had no opportunity to commit the offence and that the confession of the Appellant is not possible let alone consistent with other facts proved at the trial. He relied on the case of KAZEEM VS. FRN (2002) 4 SC (PT. 11) 42 and urged us to note that there is no independent testimony which connects the Appellant with the crime. He cited OHUKA VS THE STATE (1988) 7 SC PART II 25 AT 41–42 to support his position.
On a final note, he argued that there is no corroborative evidence to support the Appellant’s confessional statement which he retracted at the trial and that in the absence of such corroboration the trial Court was wrong to have relied on it to convict him. He urged us to resolve this issue in favour of the Appellant.
Arguing per contra, learned Counsel to the Respondent submitted and urged us to hold that the trial Court was right when it held that the Respondent proved the offence of Criminal Conspiracy and Armed Robbery against the Appellant.
He conceded to the Appellant’s Counsel’s submission that the Respondent had the duty to prove its case against the Appellant beyond reasonable doubt to be able to secure his guilt and/or conviction and commended to us SECTION 135 (1), (2), (3) OF THE EVIDENCE ACT, 2011; MBANG VS. THE STATE (2013) ALL FWLR (PT. 674) 102 AT 116, PARAS B-E AND ONAFOWOKAN VS. THE STATE (1987) 7 SC (PT. 11) 198 AT 202, PARAS 20-35. It is however his position that in proving its case, the Respondent is not bound to call a host or community of witnesses and referred us to Section 200 of the Evidence Act, 2011.
He submitted that proof beyond reasonable doubt only means proof of an offence with the certainty required in a Criminal trial; that the certainty is that the offence was committed, which is established by proving the essential ingredients of the offence; and, that it is the person charged that committed the offence.
He emphasized to us that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt; and, that if the evidence is strong against an accused person as to leave only a remote probability in his favour, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. He cited MICHAEL VS. THE STATE (2008) LPELR-1987, 1 AT 4 to support his position.
He urged us to note that the gravamen of the Appellant’s appeal is not whether or not the offence was committed, but that it was not proved by the Respondent that the Appellant was the one who committed the offence of Conspiracy and Armed Robbery levied against him.
Counsel placed much emphasis on the point that the prosecution can discharge the burden of proof on it by the evidence of eye witness, confessional statements, circumstantial evidence (where direct or confessional statements are lacking), and, by admission, by conduct of the accused person. He cited OGOGOVIE VS. STATE (2016) LPELR-40501 (SC) to support his point.
He noted that the evidence of PW1 (Toyin Olasunkanmi) and PW2 (Badmus Mohammed Taorid Olaseu) are evidence of eyewitnesses; that Exhibits B1, B2, B3, S1, S2 and S3 are the Confessional Statements of the Appellant and his two other Co-defendants; that the evidence of PW3 (Kunle Azeez) and PW4 (Inspector Lawal Mutiu) together with Exhibits A1, A2, 1, 2 and 3 (Statements of PW1, PW3, cut to size pistol, unregistered boxer bajaj motorcycle and bajaj motorcycle with Registration Number TTN 635 NC respectively) all constitute circumstantial evidence which link the Appellant and his fellow accused persons with the commission of the alleged crime.
Regarding the offence of Armed Robbery, Counsel submitted it is the duty of the Respondent to prove that there was robbery or series of robberies; that the robbery was an armed one; and, that the Appellant was the robber or one of them. He cited OGOGOVIE VS. STATE (supra) to support his position.
He noted that in proving the ingredients of Armed Robbery, the Respondent called four (4) witnesses i.e., PW1-PW4 and tendered eleven (11) Exhibits i.e. Exhibits A1, A2, B1, B2, B3, S1, S2, S3, 1, 2 and 3 respectively. That the Respondent’s four (4) witnesses and eleven (11) Exhibits all point to the irresistible conclusion that the Appellant was one of the Armed Robbers that operated on 05/21/2015 in the cement shop of PW1 at Arowojeka, Olode Area, Ibadan, Oyo State.
He drew our attention to the fact that the Confessional Statements of the Appellant and his Co-defendants i.e., Exhibits B1, B2, S1, S2 and S3 established his guilt and, that the Respondent’s four (4) witnesses and eleven (11) Exhibits are explicit and sufficient to convict the Appellant without blinking an eye.
On the definition of Confessional Statement, Counsel relied on SECTION 28 OF THE EVIDENCE ACT 2011 AND OLAOYE VS. STATE (2018) LPELR-43601 (SC) per AMIRU SANUSI, JSC (PAGES 15-16, PARA. A). He reproduced the Confessional Statements of the Appellant and his Co-defendants made at the SARS office, Dugbe in Ibadan on 07/11/2015 at pages 9-12 of his brief to emphasize his point that the Confessional Statements are unassailable and directly linked the Appellant to the crime.
He urged us to note that other than the Confessional Statements of the Appellant and his Co-defendants, Exhibits A1, A2, 1, 2 and 3, the Statements of PW1, PW2, PW3, pistol and 2 motorcycles recovered from the Appellant and his Co-defendants after their arrest constitute independent evidence and sufficient ground to convict them. He submitted that the testimonies of PW1 and PW2 are evidence of eye witnesses which suffice as direct evidence.
He further submitted it is settled law that the fact that an accused person objects to the admissibility of a Confessional Statement on the ground of involuntariness does not make that Statement unreliable and inadmissible. It will only require the trial Court to conduct a trial-within-trial to establish the veracity of the Statement and its voluntariness or otherwise. He cited OBIDIOZO & ORS. VS. STATE (1987) LPELR-2170 SC per ABDUL GANIYU OLATUNJI AGBAJE JSC AT PAGES 19–22, PARA C AND MAIWADA VS STATE (2015) LPELR-40413 CA per HABEEB ADEWALE OLUMUYIWA ABIRU JCA PAGE 31 PARAS A–F to support his submission. He pointed out that a trial-within-trial was conducted before Exhibits B1, B2, B3, S2 and S3 were admitted in evidence and cited OKONKWO VS STATE (1998) 8 NWLR (PT.561) 210 AND OLAOYE VS. STATE (2018) LPELR-43601 SC to support his position on the trial-within-trial.
Concerning his submission that an accused person can be convicted solely on his voluntary Confessional Statement without corroboration, he referred to OLAOYE VS. STATE (supra) and reiterated the point that the trial Court, in convicting the Appellant for Armed Robbery and Conspiracy to commit Armed Robbery, considered all the evidence adduced by the Respondent’s Witnesses and the circumstance surrounding the Appellant’s arrest before finding him guilty and sentencing him accordingly. He analysed the evidence of PW1 in Paragraphs 4.34–4.35 on pages 17 to 18 of his brief; the evidence of PW3 in paragraphs 4.40–4.41 on pages 19 to 20 of his brief; and, that of PW4 in Paragraphs 4.42-4.43 on pages 20 to 21 of his brief.
He cited ALABI VS. STATE (1993) 7 NWLR PART 307 PAGE 511 AT 523 PARA F-H to support his submission that the Respondent’s evidence during trial established that there was robbery; that it was carried out with the use of offensive weapon; and, that the Appellant participated in the robbery. He cited GALADIMA VS. STATE (2017) LPELR–43469 (SC) per OLUKAYODE ARIWOOLA, JSC (pages 28–29, Paras F-C) to support his submission that where there are material contradictions and inconsistencies in the evidence of the Prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies.
He submitted there are no contradictions in the evidence of the Respondent’s witnesses and if any contradiction exists, they are not material to the fact in issue. He submitted that it is not the duty of the complainant/victim to describe the type/make of gun used in robbing him and that all the law requires is proof that the Appellant was actually in possession of arms or ammunition during the robbery.
He further submitted that it is not every minor discrepancy or inaccuracy in the evidence of Prosecution witnesses that amount to contradiction. He cited OLUSEGUN VS. STATE (2020) LPELR–51156 (CA) to support his submission. He also emphasized that the trial Court evaluated the oral evidence of the Appellant and found same to be unmeritorious before relying on his Confessional Statements.
On the defence of alibi raised by the Appellant, he argued that same is an afterthought. On the meaning, nature, time to raise the defence of alibi and duty on the accused raising the defence of alibi, he relied on OKOLO OCHEMAJE VS. STATE (2008) 10 SCM PAGE 103 AT 107. He stressed that the Appellant did not mention anything relating to alibi to PW3 and PW4 (Investigating Police Officers) or any other officer on 05/11/2015 when he was arrested; and, that the Appellant also failed to afford the Police the opportunity to investigate his defence of alibi as required by law. He cited ALIU VS. STATE (2015)2 NWLR (PART. 1442) 86 D–E to support his submission that the phrase reasonable doubt which will justify an acquittal is a doubt based on or arising from evidence or lack of it. That it is a doubt which a man or woman may entertain. It is not a fanciful doubt, not an imaginary doubt, but a doubt as would cause a prudent man to hesitate before acting in matters of importance to themselves.
He argued that the guilt of the Appellant and his Co-defendants were not premised solely on their Confessional Statements but on other factors such as eyewitness account and cited STATE VS. YAHAYA (2019) LPELR–47611 (SC) per MARY UKAEGO PETER-ODILI, JSC (pages 36–38, Paras F–E) on the importance and effect of identification evidence.
He submitted the prosecution is not bound to call a host of witnesses and that where the Prosecution failed to call a particular witness; nothing stops the defence from calling him. He also cited IGBO VS. THE STATE (1975) 9–11 S.C 129–136; ONAFOWOKAN VS. THE STATE (1987) 3 NWLR (PART 61) 538 AT 552; OGOALA VS THE STATE (1991) 2 NWLR (PART 175) 509 AT 533; UGWUMBA VS THE STATE (1993) 5 NWLR (PART 296) 660 AT 674 AND OHUNYON VS THE STATE (1996) 2 SCNJ 280 AT 288 to support his submission that a Court can and is entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case; and, that a single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration.
On the meaning and when conspiracy can be said to have been committed, Counsel referred us to STATE VS. AJULUCHUKWU (2011) 5 NWLR (PART 1239) 78 AT 91H–92A; IKEMSON VS STATE (1989) 3 NWLR (PART 110) 455. He cited SOWEMIMO VS. STATE (2012) 2 NWLR (PART 1284) 372 to support his submission that conspiracy may be inferred by a trial Court from a set of facts through which a common purpose is achieved.
He urged us to note that the totality of the evidence presented by the Prosecution during trial points to the conclusion that the Appellant and his Co-defendants criminally conspired to rob PW1 and PW2 and the trial Court was right when it so held. He further urged us not to disturb the findings of the trial Judge who had the opportunity of seeing the witnesses and watching their demeanor while they testified in the witness box. He cited ENANG & ORS VS ADU (1981) LPELR–1139 (SC) to support his submission.
He finally urged us to resolve this issue against the Appellant.
I believe the starting point is to restate the settled position of the law that a vital element of our criminal jurisprudence is that the Prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. In OGUNDIYAN VS. STATE (1991) 1 NSCC 448, also reported in (1991) LPELR–2333 (SC) AT PAGES 13–14, the Supreme Court per OBASEKI, J.S.C said:
“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe Vs. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ (Nigeria) delivering the judgment of the Court on the standard of proof said:
“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin B. in Rex V. White 4 F &F 383 at 384 where the learned Baron said: –
“In order to enable you return a verdict against any person, you must be satisfied beyond reasonable doubt of his guilt and as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability, your duty is to acquit”.
Proof beyond reasonable doubt connotes such proof as precludes every reasonable proposition except that which it intends to support. See OLADELE VS. NIGERIAN ARMY (2004) 6 NWLR (PT 868) 166 179. It also connotes sufficiency of evidence. See NSOFOR V. STATE (2004) 18 NWLR (PT 905) 292 305. A case is proved beyond reasonable doubt if the evidence against the accused person is strong as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”. The cases on this point are many but I shall cite a few. See SABI VS. STATE (2011) 14 NWLR (PT. 1268) 421; IWUNZE VS. FEDERAL REPUBLIC OF NIGERIA (2013) 1 NWLR (PT. 1324) 119; NJOKU VS. STATE (2013) 2 NWLR (PT. 1339) 548; OSUAGWU VS. STATE (2013) 5 NWLR (PT. 1347) 360AND AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) 589.
The legal terminology “Proof Beyond Reasonable Doubt” does not mean proof to a scientific certainty or with mathematical exactitude. See THE STATE VS. AZEEZ (2008) 4 SC 188. It does not belong to the realm of heavenly trials. See SHANDE VS. STATE (2005) 12 MJSC 152 and does not mean proof beyond all shadow of doubt. See JOHN AGBO VS. STATE (2006) 1 SC (PT. 11)73 AND MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 AT 373. All that the Prosecution needs to do is establish the guilt of the accused with compelling and conclusive evidence. See DIBIE VS. STATE(2007) 3 SC (PT. 1)176;AKALEZI VS. STATE (1993) 2 NWLR (PT. 273)1; ONAKOYA VS. FRN (2002) 11 NWLR (PT. 779) 595; AGBO VS. STATE (2006) 6 NWLR (PT. 997) 545 AND UWAGBOE VS. STATE (2007) 6 NWLR (PT. 1031) 606.
The law is trite that the standard of proof required in criminal cases, is static and does not shift. See EHIMIYEIN VS. STATE (2016) 16 NWLR (PT. 1538) 173 AT PAGE 198 PARAGRAPHS E – F where the Court held thus:
“I agree with Learned Counsel for the Respondent that this standard of proof in a criminal trial is static and does not shift. See ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT. 61)538; IKEM VS. STATE (1985) 1 NWLR (PT. 2)378; MOSES JUA VS. THE STATE (2010) 4 NWLR (PT. 1184)217 AT 243”.
All I have been laboring to say is that the Respondent had the duty to establish all ingredients of the offence of Criminal Conspiracy to commit Armed Robbery and Armed Robbery with which the Appellant was charged in tandem with the dictates of Section 138(1) of the Evidence Act, LFN, 2011 as well as Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). See GIKI VS. STATE (2018) 6 NWLR (PT. 1615) 237 AT 249, PARAGRAPHS D–E; where the Court held thus:
“By the provision of Section 138(1) of the Evidence Act, LFN 2011, prosecution has the burden to prove its case beyond reasonable doubt”.
In BELLO VS. COP (2018) 2 NWLR (PT. 1603) 267 AT 297 PARAGRAPHS C–F, the Supreme Court held as follows:
“In a Criminal trial however, before the sanction (punishment) can be applied, the law requires that the ingredients of the offence or of each of the offences, must be proved by the prosecution throughout, beyond reasonable doubt. See MILLER VS. MINISTER OF PENSIONS (1947) Z.E.R. 372; LORI VS. STATE (1980) 8 – 11 SC 81; AMAH VS. STATE (1978) 6–7 SC 27. In other words, in all criminal cases, without exception, the prosecution has the heavy responsibility to prove the offence proffered against the accused beyond reasonable doubt, in simple and ordinary parlance means that the prosecution is required by law to prove that both in law and fact the accused committed the offence or offences with which he is charged. See IDOWU VS. STATE (2000) 12 NWLR”.
See also AJAYI VS. STATE (2013) 9 NWLR (PT. 136) 589 AT 616 PARAS B–D AND MUHAMMAD VS. STATE (2017) 13 NWLR (PT.1583) 386 AT 421 PARAS E–H.
On the Appellant’s conviction for Armed Robbery, it is settled that for an offence of Armed Robbery to be established against him, the Respondent had the duty to prove the following ingredients:
i) That there was robbery;
ii) That the robbery was an armed robbery and
iii) That the accused person was the armed robber or was among the armed robbers.
See ADELEKE VS. STATE 2013 6 NWLR (PT. 1381) 556 AT P. 582–583 PARAS G–A;OTTI VS. THE STATE (1991) 8 NWLR (PT. 207) P.103 AT P.118 PARAS C–D AND STATE VS. AJAYI (2016) 14 NWLR (PT. 1532) P.196 AT 227 -228 PARAS G–A.
The position of the law is that all the above ingredients must be proved beyond reasonable doubt by the Respondent before it can secure conviction.
I have critically perused the record and I hold that the Respondent successfully discharged the onus required of it that there was Robbery; that the Robbery was Armed Robbery; and that it was the Appellant that committed the Robbery or was one of the Robbers. In fact, I also note that the Respondent’s four (4) witnesses and the eleven (11) Exhibits tendered linked the Appellant and his Co-defendants with Armed Robbery. The Appellant’s denial is so weak that it cannot be believed by any rational person in the face of available evidence on record from the prosecution. His denial of being present at the scene of crime is, indeed, an afterthought and I so hold.
The Respondent discharged the burden on it that the Appellant was one of those who robbed PW1 and PW2. I have perused the oral account of the Armed Robbery incidence given by PW1 and PW2 who are the victims wherein they identified the Appellant as one of the Robbers that robbed them and I find and hold that their evidence is unassailable.
The Appellant’s Confessional Statements made at Sanyo Police Station and SARS Dugbe, Ibadan i.e. Exhibits B1 and S1 respectively contain unequivocal admission of the commission of the crime. The evidence of PW3 (Kunle Azeez) and PW4 (Inspector Lawal Mutiu) who were the Investigating Police Officers combined with Exhibits A1, A2, 1, 2 & 3 (Statements of PW1, PW3, cut-to-size pistol, unregistered boxer bajaj motorcycle and bajaj motorcycle with Registration Number TTN 635 NC (recovered from the Appellant and his Co-defendants) constitute positive circumstantial evidence which linked the Appellant and his Co-defendants to the commission of the crime alleged against them.
I have taken the pain to examine the Appellant’s Extra-Judicial Statement and I agree in toto with the Counsel to the Respondent that there is direct and circumstantial evidence before the trial Court which established the offence of Criminal Conspiracy and Armed Robbery against him.
PW1’s testimony leaves no one in doubt on the identity of the Appellant and his Co-defendants. For instance, evidence on record shows that the Armed Robbery incidence occurred in broad daylight and PW1 had ample time to observe the features of the Robbers.
PW2 stated under his cross-examination at page 25 of the record that the Appellant and his Co-defendants themselves led the Police to his shop as part of the places they had gone to rob. He identified the Appellant as one of those that robbed him in his shop when he went to the Police Station. Clearly, all these pieces of evidence knock off the need for identification parade to identify the Appellant. I therefore have no hesitation in agreeing with the Respondent’s Counsel and the trial Court that in the face of PW1 and PW2’s convincing and uncontradicted evidence, a formal identification parade was not necessary.
The manner in which the Appellant was identified complied with legal requirement and I so hold. See UKPABI VS. STATE (2004) 11 NWLR (PT. 884) 439 AND NDUKWE VS. STATE (2009) 7 NWLR (PT. 1139)43. Furthermore, I note that in Exhibits B2 and S2, the Appellant admitted participating in the robbery and gave detailed account of his level of participation in the crime. It is trite that where an accused is sufficiently identified by the victim of the robbery and there are other pieces of evidence that corroborate the evidence of the witness, there would be no need for an identification parade. See ANYANWU VS. THE STATE (1986) 5 NWLR (PT. 43)612 AND NWACHUKWU VS. A. G. IMO STATE (2003) 6 NWLR (PT. 816)218. In UKPABI VS. STATE (SUPRA) UWAIFO JSC at page 450 stated thus: “Identification parade is not necessary where the witness recognized one of those who robbed him while the matter was still fresh in his mind and the man was still in his neighbourhood and within easy reach. See also MBENU VS. STATE (1988) 3 NWLR (PT. 84)615 AND ABUDU VS. THE STATE (1985) 1 NWLR (PT. 1) 55 AT 61–62”.
Further to the above is the evidence of PW3 (Sgt. Kunle Azeez) that himself and one Inspector Abiub Ismail dashed to the scene of crime and arrested two robbers with the help of members of the community and that they recovered a cut-to-size locally made pistol and two boxers bajaji motorcycles. They testified they discovered three of the robbers had run into the bush but with the help of members of the community, they arrested them. In the course of their investigation, they discovered that those arrested had robbed PW1. Indeed PW1 identified them as the persons who robbed her in broad day light.
PW4 (Inspector Lawal Mutiu) also stated under cross-examination that PW1 recognized the Appellant and his Co-defendants as the people that robbed her. This piece of evidence was neither satisfactorily challenged nor contradicted by the Appellant. It corroborates the Appellant’s admission in his confessional statements that he was part of the people that robbed PW1 and PW2.
From the totality of the evidence on record, it is clear beyond any peradventure that the Respondent proved the essential ingredients of Armed Robbery against the Appellant beyond reasonable doubt and I so hold.
On the Count of conspiracy, the Appellant was alleged to have criminally conspired with his Co-defendants and others at large to rob PW1 and PW2. He categorically denied committing the offence. In his evidence in Chief at pages 55–56 of the record, the Appellant testified as follows:-
“I am in Court when all the prosecution Witnesses were given (sic) evidence. I heard the allegation against me. It is a lie that I conspired with others to commit armed robbery. I did not rob PW1 of any money. I did not confess to the commission of the crime. I do not know PW2 …”
Having painstakingly examined the record, I find and hold that the Respondent discharged the burden on it that the Appellant conspired with others to rob PW1 and PW2 and the trial Court was right to so hold. The conclusion of the trial Court is rooted in the evidence on record. The Appellant denied the offence but his denial was discredited in the face of compelling oral and documentary evidence presented by the Respondent.
On the meaning of conspiracy, this Court held in JIMOH VS. STATE (2012) 3 NWLR (PT. 1286)177 AT 175 –176 PARAS G–A, as follows:
“Conspiracy means a meeting of the minds of conspirators. It consists of the intentions of two or more persons to do an unlawful act or to do a lawful act by unlawful means and conviction for conspiring is usually based on circumstantial evidence”.
Still on the proof of conspiracy, this Court in YAKUBU VS. STATE (2014) 8 NWLR (PT. 1408)111 AT 123 PARAS F–H held thus:
“To prove conspiracy, the prosecution must prove the following:
i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement as done by one or more of the parties in furtherance of the agreement.
iii. Specifically that each of the accused persons individually participated in the conspiracy”.
See also USUFU VS. STATE (2007) 1 NWLR (PT. 1020) 44 AT 115 PARAS F–H, OBASANJO-BELLO VS. FEDERAL REPUBLIC OF NIGERIA (2011) 10 NWLR (PT. 1256) 605 AT 626 PARAS B–C.
I have examined the record over and over again and I have no doubt that the Respondent established directly and by inference that there was an agreement between the Appellant, his Co-defendants and others at large to rob PW1 and PW2. It also established that the Appellant took part in the Armed Robbery. The combined effect of the evidence presented by the Respondent at the trial point to the irresistible conclusion that the Appellant conspired with his Co-defendants and others at large to rob PW1 and PW2.There is both direct and circumstantial evidence linking the Appellant with the offence charged and I so hold.
In GARBA VS. COP (2007) 16 NWLR (PT. 1060) 370 AT 405 PARAS A–B, this Court held as follows:
“To prove conspiracy and be able to achieve conviction, the prosecution must prove, inter alia that there was:-
(b) Specifically that each of the accused individually participated in the conspiracy”
The Appellant admitted in his confessional statement that himself and other Defendants conspired to rob the victims. The Appellant’s attempt to create a doubt in the Respondent’s case at the lower Court was unsuccessful and I so hold. The law is settled that reasonable doubt that will justify an acquittal should be predicated on reasons arising from the evidence adduced or lack of it. It must perforce be a doubt which is capable of being entertained by anyone and must not be fanciful, flowery or imaginary. The doubt must be so real that it cannot be waived aside or wished away.
See ABEKE VS. THE STATE (2007) ALL FWLR (PT. 366) 644; BOLANLE VS. THE STATE 12 SC (PT. 11) 145 AND OCHIBA VS. THE STATE (2011) 1–2 SC (PT. 11)43. The above standard is lacking in this appeal and I so hold.
There is nothing on record to show that the factual circumstances proved during the trial is consistent with the Appellant’s innocence. I am particularly in agreement with the trial Court that the totality of oral and documentary evidence presented by the Respondent during trial is too strong to overlook.
Let me restate that whenever an accused person makes an extra-judicial statement admitting the commission of an offence with which he is charged, that Statement will still be considered and/or taken into account in the determination of his guilt notwithstanding that he gives evidence in Court to the contrary. See AKPAN VS. THE STATE (2000) 12 NWLR PG. 682 AT 692 AND ALLI DOGO VS.THE STATE (2013) VOL. 221 LRCN (PT. 1) 164 AT 170.
In EMOGA VS. THE STATE (1997) 7 SCNJ AT 518, the Supreme Court, per S. U. ONU, JSC stated as follows:
“It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he has a change of mind. The whole trial will be a mockery as aptly put by the Attorney-General of Ondo State and it would be dangerous to apply the principle of extra-judicial confession of accused person as it would open a flood gate of retracing of all Statements made by the accused persons before police officer”.
The law is settled that a Confessional Statement voluntarily made is the best evidence and can be relied upon to convict an accused person. See PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751)1620 PARAGRAPH B. It is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because it is from the horse’s mouth. See KASA VS. THE STATE (1994) 5 NWLR (PT. 344)269; GIRA VS. STATE (1996) LPELR–1322 (SC) AND ALO VS. STATE (2015) LPELR–24404 (SC). It must also be understood that if a suspect makes a free and voluntary confession that is direct and positive in his extra-judicial statement to the Police, that alone is sufficient to ground and support conviction without corroboration. See ASIMIYU ALARAPE & ORS. VS. THE STATE (2001) 5 NWLR (PT. 705) 79 AND OZANA UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644.
Flowing from the above, I hold that the Appellant’s Exhibits B1 and S1 are Confessional Statements within the meaning of Section 28(1) and (2) of the Evidence Act 2011 and were properly examined by the trial Court before convicting the Appellant. I hold further that there is evidence outside Exhibits B1 and S1 to show that they are true. Furthermore, they are corroborated by the evidence of PW1–PW4.
I find and hold that the Appellant had the opportunity of committing the offence with which he was charged, tried and convicted. Exhibits B1 and S1 are both consistent with other facts which have been ascertained and proved. See YESUFU VS. STATE (1976) 6 SC 167; HARUNA VS. ATTORNEY-GENERAL OF THE FEDERATION (2012)209 LRCN, 70 AT PARAGRAPHS F–P; ONOCHIE & ORS VS. THE REPUBLIC (1966) NWLR 307; HARUNA ISAH VS. THE STATE (2007) 12 NWLR (PT. 1049)637 AT 656; BUBA VS. STATE (1992) 1 NWLR (PT. 215)1 AT 19; SAMUEL AYO OMOJU VS. THE FEDERAL REPUBLIC OF NIGERIA (2008) VOL. II MJSC 156, 173 PARAGRAPHS B–D; KANU VS. THE KING (1952) 14 WACA 30; DEGA VS. STATE (2014) LPELR–24197 (CA) AND MICHEAL VS. THE STATE (2016) LPELR–41341 (CA) and a host of others.
In OJO VS. FRN (2008) 11 NWLR (PT. 1099) 467 AT 523 PARAGRAPHS D–F, the Supreme Court held as follows:
“However, before a confessional statement alone can ground the conviction of an accused person and without corroboration, it must be shown to be direct, positive and unequivocal as to the admission of guilt by an accused person. The Court must be satisfied with the truth of such confession …otherwise, it should be desirable to have outside the accused’s confession to the police some further evidence no matter how slight of the circumstances which make it probable that the confession was true”.
(Underlined for emphasis).
Also in OGUDO VS. STATE (2011) 18 NWLR (PT. 1278)1 AT 25–26 PARAGRAPHS G–G, the Court held thus:
“A Court can convict on the confessional statement of an accused person but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and ask himself the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statement made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession probable?
(f) Is the confession consistent with other facts which have been ascertained and have been proved? See KANU & ANOR VS. KING (1952) 14 WACA P. 30; MBENU VS. STATE(1988) 3 NWLR (PT. 94) P. 615; STEPHEN VS. STATE (1986) 5 NWLR (PT. 46) P. 978”.
See also AKINDIPE VS. STATE (2016) 15 NWLR (PT. 1536) 470 AT 490–491 PARAGRAPHS F–A AND EFFIONG VS. STATE (2017) 2 NWLR (PT. 1549)203 AT 231 PARAGRAPHS F–H.
The trial Court subjected Exhibits B1 and S1 to the above test and was right when it relied on them to convict the Appellant.
What is more, the Respondent presented evidence outside the confessional statements of the Appellant to prove their case.
I find and hold that there are no material contradictions in the evidence of the prosecution witnesses as submitted by the Appellant’s Counsel. To my mind, his submission relates to minor discrepancies that do not affect the credibility of the evidence presented by the prosecution. The law is settled beyond peradventure that it is not every discrepancy that will raise a doubt in the case of the Prosecution. It is only contradictions that are substantial and fundamental to the main issue(s) in question that would be fatal. This is not the situation in this appeal.
In short, I hold that PW1–PW4 did not reverse themselves in their evidence and did not change course from what they stood for before and throughout the trial. They did not deviate from what they had earlier said and did not give inconsistent account of the same event.
The Appellant at his trial raised the defence of alibi.
The law on alibi is commonplace. In UKWUNNENYI & ANOR. VS. THE STATE (1989) 4 NWLR (PT. 114) 131/144 the Supreme Court said:
“It is well settled that the defence of alibi where successful, result in the acquittal of the accused relying on the defence. It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact not act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. There is no doubt that such a defence being a matter, particularly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI VS. THE STATE (1965) NMLR 33; ODIDIKA VS. THE STATE (1977) 2 SC 21 … The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial”.
Obaseki, JSC (of blessed memory) in his concurring judgment in UKWUNNENYI (Supra) AT PAGE 149 also explained thus:
“Alibi is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the investigation stage, it is a bounding duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed). See Gachi Vs. The State (1965) NMLR 333; Ntam Vs. The State (1968) NMLR 86; Bozin Vs. The State (1985) 2 NWLR (Pt. 8) 465; Nwabueze Vs. The State (1988) 4 NWLR (Pt. 86) 16 … If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in Court, he has an uphill task of convincing the trial Judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime”.
From the above, it can easily be deduced that the basic rules and particulars on which a valid plea of alibi must stand on include: (a) the specific place/places where the accused was, (b) the people in whose company he was, and (c) what if any, transpired at the said time and place. See EBRE VS. STATE (2001) 12 NWLR (PT. 728)617 AT 636 PARAGRAPHS C – G.
Still on the rules on which a valid plea of alibi must stand, I refer to the case of STATE VS. THEOPHILUS (1966 – 67) 10 ENLR 32, where the Supreme Court per OPUTA, JSC (of blessed memory) pronounced as follows:
“An accused who relies on the defence of alibi will endeavor to get his witnesses to Court to prove his alibi. If he wants the police to investigate his alibi he has to provide tangible information relating to the place he was at the material time, the person with whom he was and their correct addresses and any information which will be of assistance to the police. In this case, I do not think anyone would expect the police merely on the assertion that the accused returned from Udi by 8p.m. to go on a wild goose chase to Udi in an effort to prove or disprove this vague alibi”.
In NSOFOR VS. STATE (2002) 10 NWLR (PT. 775)274 AT 294–295, this Court, per BA’ABA JCA stated as follows:
“The mere allegation that he was not at the scene is not enough. The accused person must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the offence in question”.
Finally, in NWABUEZE VS. THE STATE (1988) 4 NWLR (PT. 86) 16, the Supreme Court said:
“The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals. In sum, in establishing the defence of alibi, it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked. Where he fails to discharge that basic duty, he cannot avail himself of the defence”.
The effect of all the above judicial authorities is that the duty of the Police to investigate the Appellant’s alibi could only have arisen if the Appellant disclosed full particulars of the exact place he was, the time he was there, the person or persons with whom he was or who saw him there. Unfortunately, he did not provide these details in all his extra-judicial statements. As OPUTA JSC put it in CHRISTOPHER OKOSI VS. THE STATE (1989) ALL NLR 170:
“The police are not expected to go on a wild goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was”.
I have gone through the entire gamut of the record particularly Exhibits B1 and S1 and my finding is that the Appellant failed to furnish such information capable of investigation by the Police within the time required. There is stronger evidence against the Appellant on his alibi. The Respondent led credible and accepted evidence which fixed the Appellant at the scene of crime at the time the offence was committed. The Appellant’s alibi is of no moment because the Respondent’s evidence is positive, unequivocal, and irresistibly led to his guilt. See ABUBAKAR MOHAMMED VS. STATE (2015) 10 NWLR (PT. 1468)496 AT 524 PARAGRAPH per Rhodes-Vivour JSC; OSUAGWU VS. STATE (2013) 5 NWLR (Pt. 1347)360 AT 383 PARAGRAPH H; SAMPSON EBENEHI & ANOR. VS.THE STATE (2009) 6 NWLR (PT. 1138)431 AT 448 PARA A per OGBUAGU JSC.
The Appellant failed to prove he was somewhere else at the time the offence was committed. I wish to emphasize that Exhibits B1 and S1 do not contain any information on alibi capable of investigation by the police. The Appellant who raised what appears like an alibi for the first time during his defence had an uphill task which duty he did not discharge. From the totality of the evidence on record, there is no doubt the defence of alibi was not available to the Appellant and I so hold.
The inevitable conclusion on the sole issue formulated for determination in this appeal is that it is resolved against the Appellant and in favour of the Respondent.
The Respondent proved the offences alleged against the Appellant beyond reasonable doubt. I agree in toto with the reasoning and conclusion of the trial Court and find no reason whatsoever to disturb its judgment.
In the light of the foregoing, I hold that this appeal lacks merit and it is hereby dismissed. I affirm the judgment of the Oyo State High Court in SUIT NOS. I/103C/16 delivered on 25th June 2021.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, FOLASHADE AYODEJI OJO, JCA, has availed me a draft copy of the lead judgment prepared by him and just delivered. My lord has comprehensively dealt with all the issues in the appeal. I am in agreement with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I have nothing useful to add to the legal justification for the dismissal of the appeal. I too dismiss the appeal and affirm the judgment of the lower Court delivered on 25th June, 2021.
ABBA BELLO MOHAMMED, J.C.A.: The essential issue raised in this appeal is whether from the totality of the evidence led before the trial Court, the Prosecution had established beyond reasonable doubt the two count charge for the offences of conspiracy to commit armed robbery and armed robbery against the Appellant.
The lead judgment of my learned brother FOLASADE AYODEJI OJO, JCA had exhaustively resolved the issue and I agree with his reasoning and conclusion that the Prosecution had through the evidence of the four Prosecution witnesses, especially PW1 and PW2, who were the eye witnesses and victims to the crime, as well as the confessional statements of the Appellant (Exhibits B1 and S1), duly established its case against the Appellant beyond reasonable doubt and the trial Court had properly evaluated the evidence in convicting the Appellant as charged. The settled law is that where a trial Court has duly evaluated the evidence before it in making its decision, an appellate Court cannot interfere: IGAGO v STATE (1999) LPELR-1442(SC). per Karibi-Whyte, JSC at page 27. Para. E.
For the above reasons which have been elaborately espoused in the lead judgment, I also find this appeal devoid of merit. I therefore, join in dismissing same and in affirming the judgment of the trial Court delivered on 25th of June, 2021 in suit No. I/103C/16.
Appearances:
Olusola Olorunfemi For Appellant(s)
Yusuff Olatunji Ogunrinde, with him, R. O. Solahudeen For Respondent(s)