AMINU ADAMU v. THE STATE (2016)

AMINU ADAMU v. THE STATE

(2016)LCN/8348(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/K/335/C/2013

RATIO

EVIDENCE: BURDEN OF PROOF AND STANDARD OF PROOF; WHO HAS THE BURDEN OF PROOF IN CRIMINAL TRIAL, THE STANDARD OF PROOF IN CRIMINAL IN TRIAL AND THE IMPLICATION OF THE FAILURE TO DISCHARGE THE BURDEN OF PROOF

It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoko v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHAT ‘PROOF BEYOND REASONABLE DOUBT’ MEANS

It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man 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 case is proved beyond reasonable doubt but nothing short will suffice.” PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: WHAT AN ACCUSED DEFENDANT WHO DESIRES TO IMPEACH HIS STATEMENT IS DUTY BOUND TO ESTABLISH

It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan v. State (2001) 15 NWLR (Pt. 735) 184, Kazeem v. State (2009) WRN 43 and Osetola v. State (2012) 17 NWLR (Pt. 1329) 251. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: CONFESSION; WHETHER THE COURT IS ENTITLED TO CONVICT AN ACCUSED SOLELY ON THE BASIS OF HIS CONFESSION WITHOUT CORROBORATION

It is trite that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration – Stephen v. State (1986) 5 NWLR (Pt. 46) 978, Yahaya v. State (1986) 12 SC 282, Oseni v. State (2012) 5 NWLR (Pt. 1293) 351, Oladipupo v. State (2013) 1 NWLR (Pt. 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt. 1366) 435. The records of appeal show that the lower Court made a finding in the judgment that the confessional statement of the Appellant was direct, positive, unequivocal, free, voluntary and properly made. This finding has not been challenged on this appeal. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CRIMINAL LAW: PLEA OF ALIBI; WHETHER THE PLEA OF ALIBI RAISED BY AN ACCUSED WILL STAND WHERE THE PROSECUTION LEADS STRONG AND POSITIVE EVIDENCE THAT FIXES THE ACCUSED AT THE SCENE OF THE CRIME AND WHICH THE COURT ACCEPTS

Further, it is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya v. State (2010) 3 NWLR (Pt. 1781) 423, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Sunday v. State (2010) 18 NWLR (Pt. 1224) 223. In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits 3 and 3A, clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant and the rejection of the defence of alibi by the lower Court cannot thus be faulted. PER. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES:

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

AMINU ADAMU – Appellant(s)

AND

THE STATE – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of the Kaduna State High Court in Charge No. KDH/KAD/5C/2007 delivered by Honorable Justice G. I. Kurada on the 29th of June, 2010. The Appellant, along with four other persons, was arraigned before the lower Court on a two count charge of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990, as amended. The Appellant was the third accused person and he was alleged to have attacked, in the company of the four other persons, one Auwal Zakari Alhassan and one Salisu Zakari and members of their family at No. 25, Kwoi Street, Zango, Tudun Wada, Kaduna in the night of the 14th of August, 2006 at about 2:40am while armed with sticks, iron rods, machetes and other dangerous weapons and to have stolen the sum of N60,000.00 and one mobile phone handset from Auwal Zakari Alhassan and the sum of N5,000.00 and one mobile phone handset from Salisu Zakari.

The Appellant pleaded Not Guilty to the two count charge and the matter proceeded to trial and during the course of which the

Respondent called three witnesses in proof of the case against the Appellant and tendered exhibits while only the Appellant testified in his own defence and he did not tender any exhibit. At the conclusion of hearing and after the final addresses of Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant was aggrieved by the decision and he applied to this Court for an extension of time within which to file his notice and grounds of appeal against it. Sequel to the grant of his request by this Court, the Appellant caused his Counsel to file a notice of appeal dated the 5th of February, 2013 on the 7th of February, 2013 and it contained four grounds of appeal.

In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 16th of July, 2013 on the 23rd of January, 2014. The Respondent reacted by filing a brief of arguments dated the 4th of July, 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellant

formulated two issues for determination in the Appellant’s brief of arguments and these were:
i. Whether the prosecution proved its case beyond reasonable doubt, connecting the commission of the crime with the Appellant, to warrant the learned trial Judge convicting and sentencing the Appellant to death by hanging.
ii. Whether from the totality of the evidence before the trial Court, the learned trial Judge was right to have relied on the contradictory evidence of PW1 and the Appellant’s purported confessional statement to convict the Appellant.

On the first issue for determination, Counsel to the Appellant stated that it was trite law that there were certain elements that the Respondent must prove to succeed in a charge of armed robbery and he listed the elements as (i) that there was a robbery; (ii) that the accused person committed the robbery; and (iii) that at or immediately before or after the robbery, the accused person wounded or used personal violence to any person and he referred to the cases of John v. State (2011) 18 NWLR (Pt. 1278) 353 and State v. Salawu (2011) 18 NWLR (Pt. 1279) 580. Counsel stated that the Respondent was expected

to prove the three elements that constituted the offence beyond reasonable doubt and that failure to prove any of the elements was fatal to the case. Counsel conceded that, from the evidence led by the Respondent, it was not in dispute that there was a robbery on the alleged date, but stated that the critical question was whether the Appellant was amongst those who committed the robbery and that the evidence led by the Respondent failed to answer this vital question.

Counsel stated that the first prosecution witness, one of the victims of the robbery, testified that the robbery was carried out by persons he did not know and that this piece of evidence made it incumbent on the Respondent to show that an identification parade was carried out by the Police to ascertain the identity of the persons who carried out the robbery. Counsel stated that where all accused person is not arrested at the scene of the crime and the crime is stated to have been committed in the dark night when visibility is poor, the only valid and proper way for the prosecution to prove the identity of the perpetuators of the crime is by showing that an identification parade was conducted

and he referred to the case of Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360 on when an identification parade must be conducted and the cases of Alabi v. State (1993) 7 NWLR (Pt. 307) 511 and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170. Counsel stated that there was no evidence that an identification parade was conducted by the Police to identify the Appellant as one of the perpetrators of the robbery and he traversed through the testimonies of the first and third prosecution witnesses and concluded that the quality of the evidence ted by the Respondent on the issue of identity was poor and that the lower Court ought not to have relied on it to convict the Appellant.

Counsel stated further that it was an essential element of a charge of armed robbery to show that the robbery was carried out with offensive weapons and he relied on the cases of Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1, Osuagwu v. State supra and Adeyemi v. State (2013) 3 NWLR (Pt. 1340) 78. Counsel stated that throughout trial in the lower Court the Respondent did not tender any weapon or weapons allegedly used in carrying out the robbery and as such failed to establish an essential

element of the offence alleged against the Appellant. Counsel stated that it was also a requirement of a charge of armed robbery that the robber wounded or used personal violence on the victim and that though the first prosecution witness testified that his senior brother, a victim of the robbery, sustained injuries as a result of beatings received in the course of the robbery, the Respondent did not call the said senior brother of the first prosecution witness as a witness at the trial and that this is more than meets the eyes and it raised a presumption of withholding evidence under Section 149 (d) of the Evidence Act and he relied on the case of State v. Azeez (2008) 14 NWLR (Pt. 1180) 439.

Counsel also stated that the Appellant raised the defence of alibi in the course of his testimony in his defence as the third defence witness before the lower Court when he testified that he was at the State Criminal Investigation Department of the Police on the 14th of August, 2006 when the robbery incident took place. Counsel conceded that the tenor of case law authorities is that a defence of alibi must be raised at the earliest possible period to enable the

Police investigate, but he stated that even where it is raised during trial, the burden of proof still laid on the prosecution and that it was not for an accused person to establish or prove his defence of alibi and that the Respondent ought to have adduced contrary evidence during the cross-examination of the Appellant to disprove the defence, and it failed to do so. Counsel stated that the lower Court was obliged to consider all defences raised by the Appellant at the trial, no matter how stupid, and that the lower Court dismissed the defence of alibi as a cock and bull story in the judgment without the Respondent adducing any contrary evidence and that this was wrong and he referred to the case of Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. Counsel stated that the evidence of the Appellant on his alibi was corroborated by the testimony of the second prosecution witness, a police officer, who stated that the Appellant was not arrested at the scene of the crime and that the failure of the Respondent to discredit the defence of alibi of the Appellant ought to have created a doubt in the mind of the lower Court and which doubt should have been resolved in

favour of the Appellant and he referred to the case of Azeez v. State (2005) 8 NWLR (Pt. 927) 312.

Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.

On the second issue for determination, Counsel took a look at the testimony of the first prosecution witness and stated that the witness testified in a portion of his evidence that when he opened the door, he saw people he did not know holding weapons in their hands such as sticks and iron rods, while in another part of the evidence he said he knew one of the accused persons because they lived in the same area and he only met the others when the police brought them to their house. Counsel thereafter proceeded to define when a statement is said to be contradictory and he referred to the case of Okereke v. State (1998) 3 NWLR (Pt. 540) 75 and stated that where there are material contradictions in the evidence of a prosecution witness that are fundamental and substantial, they are fatal to the case of the prosecution and he referred to the case of Balogun v. A. G. Ogun State (2001) 14 NWLR (Pt. 733) 331 on the factors that a trial Court should consider in

dealing with contradictory evidence. Counsel stated that the testimony of the first prosecution witness was contradictory and that the contradiction was substantial and fundamental because it touched on the issue of the identity of the perpetuators of the crime and that as such the lower Court ought to have rejected the evidence as unbelievable, notwithstanding the fact that the witness was not cross-examined during the trial and he referred to the cases of Okereke v. State supra, Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, F.R.N. v. Iweka (2013) 3 NWLR (Pt. 1341) 285, amongst others.

Counsel further stated that, from the judgment, the lower Court relied on the confessional statement of the Appellant, the English and Hausa versions of which were tendered as Exhibits 3 and 3A at the trial, and that though a trial Court can convict solely on the basis of a confessional statement, it must look for corroborative factors outside the confessional statement which make the confession plausible where the charge is a capital offence and he referred to the cases of Stephen v. State (2013) 8 NWLR (Pt. 1355) 153. Counsel thereafter referred to the six principles

guiding evaluation of a retracted confessional statement as laid down in case law authorities and he place reliance on the case of Shurumo v. State (2010) 16 NWLR (Pt. 1218) 65, amongst others and stated that the expected corroborative evidence must come from the prosecution and never from the defence and that there was nothing in the testimonies of the second and third prosecution witnesses which corroborated the alleged confessional statement of the Appellant.

Counsel referred to portions of the confessional statement and stated that there was nothing in the entire evidence led by the Respondent corroborating the different portions of the confessional statement and that neither the English nor the Hausa version of the confessional statement was signed or thumb printed by the Appellant, thus indicating that the Appellant did not make the statement. Counsel stated that it was obvious from the above that the lower Court did not properly evaluate the confessional statement of the Appellant before relying on it to convict the Appellant. Counsel stated that the Respondent failed to lead sufficient evidence to prove the essential elements of the charge against

the Appellant and/or to lead any evidence linking the Appellant to the alleged crime and that the proper order the trial Court ought to have made was one discharging the Appellant and he referred to the cases of Obi v. State (2013) 5 NWLR (Pt. 1346) 68 and Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49.

Counsel urged this Court to also resolve the second issue for determination in favour of the Appellant and to allow this appeal and set aside the judgment of the lower Court and sentence passed on the Appellant therein.

In his response, Counsel to the Respondent formulated four issues for determination in the Respondent’s brief of arguments. These were:
i. Whether the trial Judge is obliged to allow an investigation by the Police of the defence of alibi raised by the Appellant during his testimony as DW1 and whether failure by the trial Judge to order such an investigation caused a miscarriage of justice warranting the setting aside of the Appellant’s conviction.
ii. Whether there was any contradiction in the testimony of PW1 and if there was such contradiction, was it material enough to cast reasonable doubt on the prosecution’s case.

iii. Whether there was any external evidence corroborating the confessional statement of the Appellant for the trial Judge to base the conviction of the Appellant solely on it.
iv. Whether there was sufficient evidence linking the Appellant with the crime to justify his conviction.

On the first issue for determination, Counsel stated that the law is that where an accused person raises the issue of alibi that he was somewhere else other than the scene of the crime at the time of commission of the crime with which he is charged and gives facts and circumstances of his where about, the prosecution is duty bound to investigate the alibi set up to verify its truthfulness or otherwise and he referred to the case of Agboola v. State (2013) 5 SCNJ (Pt. II) 683. Counsel stated that for the defence of alibi to be availing however, it must have been raised at the earliest opportunity by an accused person in a statement to the police during investigation and that where this is not done the police have no duty to investigate the defence and also that the accused person must have given detailed and comprehensive particulars of his where about on the day of

commission of the offence including the specific place he was, the persons in whose company he was and what, if anything that transpired at the time in the place he was. Counsel stated that in the instant case, the Appellant never raised the defence of alibi in his confessional statement, Exhibits 3 and 3A, and did not raise it until his testimony in the course of his defence as the third defence witness and further that apart from saying that he was at State Criminal Investigation Department on the day of the incident, the Appellant did not give any further particulars to support the defence of alibi and that in such a case the defence was purely an afterthought and could not avail the Appellant and he referred to the cases of Udoebre v. State (2001) 6 SCNJ 54, Agboola v. State supra and Bashaya v. State (1998) 4 SCNJ 202. Counsel stated further that there was unchallenged evidence before the lower Court in the testimony of the second prosecution witness that it was on the 22nd of August 2008 that the Appellant and his four co-accused persons were transferred by the Divisional Police Officer in charge of Tudun Wada Police Station to the State Criminal

Investigation Department and that the lower Court believed this testimony. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.

On the second issue for determination, Counsel stated the pieces of evidence of the first prosecution cited by Counsel to the Appellant as being contradictory were not contradictory at all and that what the first plaintiff witness said was that he did not know the robbers that attacked him and that he knew the fourth accused person only because they lived in the same neighbourhood and not because he identified the fourth accused person at the scene of the crime. Counsel stated that the testimony of the first prosecution witness was consistent with the statement of the fourth accused person in his confessional statement, Exhibits 4 and 4A, wherein the fourth accused person stated that he did not enter the house of the first prosecution witness with the other accused persons because the inhabitants of the house knew him. Counsel urged this Court to thus discountenance the submissions of Counsel to the Appellant on the alleged contradiction.

On the third issue for determination,

Counsel stated that the law was that where a confessional statement is free, direct, positive and voluntary and it is properly proved, it is sufficient to support a conviction, without the need for corroborative evidence, so long as the Court is satisfied of its truth, even where the confession was retracted and he referred to the cases of Idowu v. State (2000) 7 SCNJ 245 and Oseni v. State (2012) 2 SCNJ 215. Counsel stated that it is however the practice to look outside the confession for some evidence of confirmatory circumstances and he reiterated the six tests laid down by case law authorities in dealing with confessional statements and stated that the lower Court applied the tests in the instant case and considered the confessional statement in the light of other available credible evidence and found the contents of the confessional statement to be true. Counsel stated that neither the Appellant nor his Counsel objected to the tendering of the confessional statement in the lower Court and that the Appellant made no reference to the confessional statement in the course of his testimony and did not deny making same and that the testimony of the second

prosecution witness that the Appellant made the statement voluntarily was not challenged. Counsel traversed through the story of the Respondent before the lower Court on the way and manner the Appellant and the other accused person were arrested and the investigations carried out upon the arrest as contained in the unchallenged testimony of the third prosecution witness and stated that the story corroborated the contents of the confessional statement of the Appellant. Counsel stated that the contents of the confessional statement as to the items that were stolen, the sum of N60,000.00 and two GSM handsets, were also corroborated by the testimony of the first prosecution witness. Counsel stated that the confessional statement of the Appellant was positive, possible, unequivocal and direct and it was consistent and in agreement with the contents of the confessional statements of the other co-accused persons on what transpired in the night of the robbery incident. Counsel stated that there were many independent facts outside the confessional statement confirming its truth and that the lower Court was thus right in basing the conviction of the Appellant on the

confessional statement.

On the fourth issue for determination, Counsel stated that the contention of the Counsel to the Appellant that an essential element of the charge against the Appellant was not established by reason of the failure of the Respondent to conduct an identification parade for the first prosecution witness to positively identify the Appellant as one of the robbers that attacked him was misconceived. Counsel stated that an identification parade was not necessary in all cases where there was a fleeting encounter with the victim of the crime, if there are other pieces of evidence conclusively identifying the perpetuators of the crime and he referred to the case of Agboola v. State supra. Counsel stated that in the present case, there was no need for an identification parade because the Appellant made a confessional statement admitting the commission of the crime and he referred to the case of Osung v. State (2012) 6 SCNJ (Pt. II) 511. Counsel urged this Court to resolve this issue against the Appellant.

Counsel concluded by urging this Court to find and hold that the Respondent proved its case against the Appellant beyond reasonable

doubt and to refuse the appeal and to affirm the judgment of the lower Court.

This Court must say that reading though the judgment, the notice of appeal and the briefs of arguments of the parties in this appeal, it is of the view that there is indeed only one issue for determination in this appeal and it is:
Whether the Respondent led clear, cogent and credible evidence to sustain the two count charge preferred against the Appellant and thus warrant the conviction and sentence of the Appellant by the lower Court.

This appeal will be resolved on this sole issue for determination and all the arguments of Counsel to the parties shall be considered under this sole issue.

shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoko v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589.

established its case beyond reasonable doubt – Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man 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 case is proved beyond reasonable doubt but nothing short will suffice.”

The charge against the Appellant before the lower Court was two counts of armed robbery. It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola v. State

(2012) 17 NWLR (Pt. 1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt. 1358) 138, Ajayi v. State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved – Sabi v. State supra.

It is settled in our law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497 .

It was not in contest in this appeal that a robbery indeed took place at No. 25, Kwoi Street, Zango, Tudun Wada, Kaduna in the night of the 14th of August, 2006 at about 2:40am and during which one Auwal Zakari Alhassan and one Salisu Zakari and

members of their family were attacked and the sum of N60,000.00 and one mobile phone handset were stolen from Auwal Zakari Alhassan and the sum of N5,000.00 and one mobile phone handset were stolen from Salisu Zakari. This was the robbery for which the Appellant was charged. The first ingredient of the two count charge against the Appellant was thus accepted as proved and established.

In proving the second and third ingredients of the offence of armed robbery, it is obvious from the records of appeal that the Respondent relied on the confessional statement of the Appellant in establishing the ingredients beyond reasonable doubt and that the lower Court accepted the confessional statement as being direct, positive and unequivocal and it found the Appellant guilty on the basis of the confessional statement. Now, the case of the Respondent against the Appellant and his co-accused persons in the lower Court, as contained and related in the testimonies of the three prosecution witnesses, was that in the night of the 14th of August, 2006, the Appellant in the company of four other persons, while armed with sticks, iron rods, machetes and other dangerous

weapons, went on a robbery operation to the house of one Honorable Shusha Abdullahi on Kwoi Street, Zango Road, Tundun Wada, Kaduna. It was the case of the Respondent that on getting to Kwoi Street, the Appellant and his co-accused persons were unable to trace the house of the said Honorable Shusha Abdullahi and in the course of their search for the house, they were overheard by a resident in the area asking one of them called Bature for the location of the house. It was the case of the Respondent that when the Appellant and his accomplices were unable to locate the house they set out to rob, they attacked the residence of one Auwal Zakari Alhassan and one Salisu Zakan and members of their family and stole the sums of N60,000.00 and N5,000.00 and two mobile phone handsets.

The first prosecution witness was Auwalu Zakari Alhassan and he testified that in the night of the 14th of August, 2006 between 2am and 3am, he and his brother Salisu Zakari heard a noise outside their room in their house and that when he opened the door, he saw people he did not know holding weapons in their hands such as sticks and iron rods and that he quickly locked the door and

opened the door leading to the outside and he and his brother ran to their neighbor’s house. He testified that the said persons broke down the door of their room and chased and caught him and his brother and brought them back to their room and made them lie on their mattresses and that one of them hit him with an iron rod on his bottom. He stated that the said persons thereafter ransacked their room and took N60,000.00 from his bag and N5,000.00 from his brother as well as their two mobile telephone handsets and they also beat up and injured his brother. He gave evidence that after the robbers left, they reported the matter at Gidan Gayu Police Station and that they were later invited to the State CID where he made a statement, but that before their invitation to the State CID, the police brought some people to their house in a vehicle on the 24th of August, 2006 and the persons showed the police their house as one the houses that they robbed. Counsel to the Appellant declined to cross-examine the witness.

The third prosecution witness was one Corporal Mohammed Hamaljude and he was attached to the Tudun Wada Police Station and he testified that on the

15th of August, 2006 he was at the Police Station when one Honorable Shusha Abdullahi, came in the company of one Idris, to lodge a complaint that a group of armed bandits came to his house but could not trace his house and that the said Idris, his neighbor, overheard the bandits asking one of them called Bature for the house of Shusha and Bature was unable to locate the house. He testified that Idris identified the person called Bature and they discovered that it was someone they already knew and that the said Bature was arrested on the 16th of August, 2006 and, on interrogation, mentioned the names of the Appellant and three other persons as those who participated with him in the robbery. He testified that the Appellant and the other persons mentioned were arrested and they were transferred along with Bature to the State CID and that Honorable Shusha Abdullahi lived on Kwoi Street, Zango Road, Tudun Wada. Counsel to the Appellant also declined to cross-examine the witness.

The second prosecution witness Sergeant Aminu Hamza, attached to the Anti-Robbery Section of the Sate CID, Kaduna, and he testified that on the 22nd of August, 2006, a case of armed

robbery was transferred from the Tundun Wada Police Station to the State CID and it was transferred to his section for investigation and he was a member of the team that carried out the investigation. He testified that on 24th of August, 2006, in the course of investigation, the Appellant and his co-accused persons confessed to the commission of a robbery operation which they said they carried out along Zargo Road in Tudun Wada, Kaduna and that they led a team of detectives to Zango Road and showed them one of the houses they operated in at No. CR 25, Kwoi Street and whereat the detectives confirmed from the two victims, Auwal Zakari Alhassan and one Salisu Zakari, that there was a robbery operation in their house on the 14th of August, 2006 and the victims were invited to the Anti-Robbery Section and they made statements.

The witness further gave evidence that the Appellant and his co-accused persons said they understood only Hausa language, and not English, and that he cautioned them in Hausa and he read the word of caution to each one of them, one after the other, and they told him they understood the words and they signed. He stated that each of them

thereafter volunteered his statement in Hausa, one after the other, and they each asked him to write for him and he recorded the statement of each person and that at the end of each statement, he read over the statement of the person to that person and each of them confirmed that the recorded statement reflected his story and signed and he countersigned. He testified that when he saw that the statements were confessional in nature, he took them, one after the other, to his superior officer who also read the statement of each person to that person and they each agreed they made their respective statements voluntarily and the superior officer endorsed each statement and signed and each accused person counter signed his statement and that he subsequently translated each of the statements into English language. The witness thereafter tendered the Hausa and English versions of confessional statement of the Appellant as Exhibits 3 and 3A and those of the other accused persons as Exhibit 1 and 1A, 2 and 2A, 4 and 4A and 5 and 5A.

Neither the English version nor the Hausa version of the confessional statement of the Appellant, Exhibits 3 and 3A, formed part of

the records of appeal forwarded to this Court, either as part of the bundle or otherwise. However, the lower Court summarized the contents of the confessional statement in the judgment thus:
“Now, in Exhibits 3 and 3A, the third accused said that the used to go to a drinking joint called Obalende in the night to look for free women. They used to meet with Sani Adamu, Abdullahi Usman, Adamu Mohammed and Nasiru Idris. It was there that they planned to go for robbery at one Alhaji Shusha’s house. When they went for the robbery, he was in possession of a stick, Sani Adamu was carrying a cutlass while Nasiru Idris was carrying a knife and the rest were carrying sticks. On reaching the house of Alhaji Shusha, there was no way for them to enter. They then broke into the house of one man whose name he does not know. When they entered, they knocked at the door and when he opened, they entered and attacked him with their weapons and searched the room and got the sum him of N60,000.00 and his GSM handsets.” (See page 30 of the records)

The Appellant did not challenge this summary of his confessional statement and has not stated that it was not a true reflection

of the contents of his statement. The unchallenged testimony of the second prosecution witness asserted that the Hausa version of the confessional statement carried the signatures of the Appellant and the endorsement of the superior Police Officer. The records of appeal show that neither the Appellant nor his Counsel raised any objection to the admissibility of the confessional statement and/or protested that the Appellant did not make the statements or that the signatures thereon did not belong to the Appellant at the time it was tendered by the second prosecution witness. It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true – Osung v. State (2012) 18 NWLR (Pt. 1332) 256, Ajibade v State (2013) 6 NWLR (Pt. 1349) 25 at 44 E-H, Stephen v State (2013) 8 NWLR (Pt. 1355) 153 at 173 D-H.

Counsel to the Appellant berated the lower Court for relying on the confessional statement to convict the

Appellant on the ground that there was no corroborative evidence in the testimonies of the prosecution witnesses showing that the contents of the confessional statement was plausible and true. Firstly, it must be pointed out that the records of appeal show that that at no time during the cross-examination of the second prosecution witness did the Counsel to the Appellant put the witness to task on whether or not the Appellant made the confessional statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant will be believed and any subsequent suggestion otherwise by the accused defendant is to be treated as an afterthought – Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119, Chukwu v State (2013) 4 NWLR (Pt. 1343) 1, Egwumi v. State (2013) All FWLR (Pt. 678) 824. This point was succinctly explained by Achike, JSC in Oforlete v. State (2000) 12 NWLR (Pt. 631) 475 at 436 C-E thus:
“where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence…. After all, the noble art of

cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory, if not suicidal bad practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”

Secondly, and more importantly, the records of appeal show that in his testimony in his defence before the lower Court as the third defence witness, the Appellant made no reference to the confessional statement; he did not deny making the statement, he did not contest its contents or his signature thereon

and neither did he contradict the testimony of the second prosecution witness on the making of the statement. It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan v. State (2001) 15 NWLR (Pt. 735) 184, Kazeem v. State (2009) WRN 43 and Osetola v. State (2012) 17 NWLR (Pt. 1329) 251.

The Appellant did not raise and/or establish any of these situations in his evidence before the lower Court. All that the Appellant did in his testimony was to give evidence inconsistent with the contents of the confessional statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as

unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383, Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285, Osuagwu v. State supra. In the instant case, the Appellant did not offer any explanation for the inconsistency.
There was nothing presented by the Appellant to warrant the need for the lower Court to look for corroborative evidence – Osung v. State supra. In Bassey v. State (2012) 12 NWLR (Pt. 1314) 209, the Supreme Court held that where an accused person confesses to an offence in his extra-judicial statement and had no objection to the statement being tendered and admitted in evidence and did not lead any cogent evidence in his testimony in Court resiling from the contents of the statement, there would be no need to look for evidence outside the confession anymore.

It is trite that a Court is entitled to convict an accused defendant solely on

the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration – Stephen v. State (1986) 5 NWLR (Pt. 46) 978, Yahaya v. State (1986) 12 SC 282, Oseni v. State (2012) 5 NWLR (Pt. 1293) 351, Oladipupo v. State (2013) 1 NWLR (Pt. 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt. 1366) 435. The records of appeal show that the lower Court made a finding in the judgment that the confessional statement of the Appellant was direct, positive, unequivocal, free, voluntary and properly made. This finding has not been challenged on this appeal.

Going further and assuming that the Appellant presented a situation that necessitated the need for corroborating facts of his confessional statement, what is required is that before the Court would believe and act on the confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the

defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu v. State (2009) 1 NWLR (Pt. 1723) 523, Kabiru v. Attorney General, Ogun State (2009) 5 NWLR (Pt. 1134) 209, Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1 and Galadima v. State (2012) 18 NWLR (Pt. 1333) 610.

The records of appeal show that the lower Court recognized these tests and that it subjected the contents of the confessional statement of the Appellant to the tests and it found adequate corroborative facts in the testimonies of the first and third prosecution witnesses confirming the truth of the confessional statement (see pages 31 to 32 of the records). This finding of the lower Court was also not challenged on this appeal. It is correct, as found by the lower Court, that the testimonies of the first, second and third prosecution witnesses, which were evidence outside the confession of the Appellant, corroborated the contents of the confessional statements in material particulars; the testimony of each

of the witnesses corroborated different segments of the continuous story in the confessional statement and they show the confession to be true. It is obvious from the facts and circumstances of this case that the Appellant had the opportunity of committing the offence and that the sequence of events as narrated in the confessional statement were possible and that the facts in the confessional statement were in line with the unchallenged evidence of the first, second and third prosecution witnesses. This Court cannot thus fault the reliance placed on the confessional statement of the Appellant by the lower Court.

Counsel to the Appellant made copious submissions on the failure of the Respondent to conduct an identification parade to ascertain that the Appellant was indeed one the persons that participated in the armed robbery. It settled that an identification parade is completely unnecessary, and would amount to a complete waste of time, where an accused defendant has confessed to the commission of the crime, as in the instant case – Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Fatai Vs State (2013) 10 NWLR (Pt. 1361) 1, Sadiku v. State (2013) 11 NWLR

(Pt. 1364) 191. The entire submissions of Counsel on the issue of identification parade were thus not well conceived.

Now, Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person.

Section 11 of the Act defined firearm to include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, pistol, explosive, or ammunition or other firearm, whether whole or in detached pieces. It went further to say that “offensive weapon” means any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. These definitions were reiterated by the Court of Appeal in Kayode v.

State (2012) 11 NWLR (Pt. 1312) 523.

Counsel to the Appellant criticized the case of the Respondent before the lower Court on the ground that the weapons used in the said robbery were not tendered in evidence and that as such there was no proof that the robbery was carried out with offensive weapons. A read through the confessional statement shows that the Appellant admitted that he was possession of a stick at the time of the robbery while the fifth accused person was carrying a cutlass and the first accused person was carrying a knife and the other co-accused persons were carrying sticks. The first prosecution witness gave unchallenged evidence that the persons who robbed him and his brother were armed with iron-rods and sticks and that he was beaten with an iron rod on his bottom while his brother was beaten up and injured in the course of the robbery. It is clear that a knife, a cutlass, sticks and iron rod come within the definition of offensive weapon under the provisions of the Robbery and Firearms (Special Provisions) Act. It is settled law that where there is cogent evidence of the use of a weapon or weapons in the commission of a crime and

cogent evidence linking the accused person with the use of the said weapon or weapons in the commission of the said crime, the non-tendering of the weapon at the trial is of no consequence and cannot vitiate a judgment – Garba v. The State (2000) 4 SCNJ 315, Ochiba v. State (2010) LPELR-9002(CA), Kabaka v. State (2010) LPELR-4303(CA), Salahudeen v. State (2013) LPELR-21851(CA).

Counsel to the Appellant also raised the issue of an alleged contradiction in the testimony of the first prosecution witness. Counsel stated that in one breadth the witness said when he opened his door during the armed robbery attack he saw people he did not know holding weapons in their hands such as sticks and iron rods, while in another part of the evidence he said he knew one of the accused persons because they lived in the same area and he only met the others when the police brought them to their house. Counsel stated that the two pieces of evidence were contradictory and that the contradictions were fatal to the case of the Respondent before the lower Court. It is elementary that in determining whether there are contradictions in the case of a, party, the entire evidence led

before the Court must be looked at holistically, and this includes the evidence of the other party as the law recognizes that where the evidence led by a partly buttresses and explains the evidence of the other party, that other party can rely on it to support his case – Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, Gbadamosi v. Okege (2011) 3 NWLR (Pt. 1233) 175.

As stated earlier, the Appellant was charged along with four other persons and the fourth accused person was one Abdullahi Usman (a.k.a. Bature) and the records of appeal show that this fourth accused person also made a confessional statement which was tendered and admitted as Exhibits 4 and 4A. In the said statement, the fourth accused person stated that when he and the other accused persons, including the Appellant, broke into the house of the first prosecution witness on the night of the robbery, he stayed outside and did not enter the house because the first prosecution witness knew him. When this piece of evidence is read along with the testimony of the first prosecution witness that he knew one of the accused persons but that he did not

know the persons holding weapons in their hands that entered his house on the night of the robbery, it is evident that there is no contradiction in the testimony of the witness. The allegation of contradiction in the case of the Respondent was not well-founded.

This Court finds and holds that the Respondent led cogent evidence to establish the other ingredients of the offences of armed robbery brought against the Appellant.

Counsel to the Appellant addressed the issue of defence of alibi which he said that the Appellant raised in the course of his oral testimony in his defence as the third defence witness. Counsel referred to the portion of the testimony of the Appellant wherein he said that he was at the State Criminal Investigation Department on the date and time of the said robbery and stated that this amounted to the Appellant raising the defence of alibi. Counsel complained that the lower Court’s dismissal of the defence as a cock and bull story without the Respondent leading evidence to debunk the story was arbitrary and wrong in law. Now, as stated earlier, the failure of the Appellant to challenge the making of his confessional statement,

Exhibits 3 and 3A, meant that his oral evidence in his testimony in his defence which is inconsistent with or contradicts the contents of the statement, should be treated as unreliable and rejected.

Additionally, the defence of alibi is a matter that is exclusively within the knowledge of an accused person and thus the burden is always on the accused person to provide at the earliest opportunity the materials or data of where he was at the time of the commission of the crime so as to enable the Police investigate the facts of the defence and the earliest opportunity has been held by the Courts to be in the course of interrogation of the accused person by the Police. Where the defence is raised by an accused person for the first time in the witness box, as in the instant case, it is treated as an afterthought and the failure to investigate it will not, in such circumstances, vitiate the judgment of the lower Court – Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515, Azeez v. State (2005) 8 NWLR (Pt. 927) 312, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 and Adeyemi v. State (2011) 5 NWLR (Pt. 1239) 1.

Further, it is settled law that where the prosecution

leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya v. State (2010) 3 NWLR (Pt. 1781) 423, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Sunday v. State (2010) 18 NWLR (Pt. 1224) 223. In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits 3 and 3A, clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant and the rejection of the defence of alibi by the lower Court cannot thus be faulted.

In conclusion, this Court finds and holds that this appeal lacks merit and it is hereby dismissed. The judgment of the High Court of the Kaduna State in Charge No. KDH/KAD/5C/2007 delivered by Honorable Justice G. I. Kurada on the 29th of June, 2010 and the sentence passed on the Appellant therein ate hereby affirmed.
These shall be the orders of this Court.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the leading judgment of my lord, Habeeb Adewale Olumuyiwa

Abiru, J.C.A. in this appeal. I entirely agree with the reasoning’s and conclusions reached therein, which I fully adopt as mine. My lord, in his characteristic analysis of issues raised in an appeal has dealt extensively and admirably with all the issues that arose in this appeal. However let me, in furtherance of my concurring with the leading judgment, re-emphasise some aspects of the principles of law which arose in the appeal and dealt with therein.

The commission of an offence by an accused person can be proved or established by either of the following.
(a) The confessional statement of the accused person; or
(b) Circumstantial evidence; or
(c) Evidence of eye-witness of the crime.
Thus, the prosecution does not always need an eye-witness evidence to secure the conviction of an accused person, even where the charge is that of culpable homicide or murder, if the charge can be proved by any of the ways enumerated supra. See Igalede v. State (2006) 6 NWLR (Pt. 1000) P. 100 @ 120; Lori v. State (1980) 8-11 SC P. 81; and Emeka v. State (2001)14 NWLR (Pt. 734) P. 666.

The Appellant was arraigned for committing the offence of Armed

Robbery under Section 1 (2) (a) of the Armed Robbery and Firearms (Special Provisions) Act, 1990(as amended).
The Appellant pleaded not guilty and the case proceeded to hearing. The prosecution called a total of three (3) witnesses and tendered exhibits. The appellant testified in his own defence, and parties addressed the Court. In a judgment delivered 29th June, 2010, the lower Court convicted the appellant as charged and sentenced him to death by hanging.

Was the learned trial judge of the lower Court justified in convicting and sentencing the Appellant? The law is trite, the commission of a crime by an accused person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts. If in a criminal trial, on the whole of evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by the law and the accused is entitled to acquittal. However; this does not mean the prosecution must call every available piece of evidence to prove its case. It is

enough if sufficient evidence is adduced to discharge the onus which the law lays upon the prosecution. See Alonge v. I.G.P. (1959) SCMLR 516 and Igabele v. State (2006) 6 NWLR (Pt. 925) p. 100 @ 127.

Learned counsel to the appellant submitted that the prosecution did not adduce cogent and reliable evidence proving the commission of the offence by the appellant, beyond reasonable doubt. What is proof beyond reasonable doubt in criminal jurisprudence? In the case of Afolalu v. State (2010) All FWLR (Pt. 588) P. 812, the Supreme Court per Mohammed J.S.C, said:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable double is discharged and the conviction of the accused will be upheld even if it is on the credible evidence of a single witness….. On the other hand, where on the totality of the evidence, a reasonable doubt is created; the prosecution

would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of doubt resulting in the discharge and acquittal.”
The Court went further to state as follows:
“Proof beyond reasonable doubt is not proof beyond a shadow of doubt. It is not therefore, proof beyond all possible or imaginary doubt, that is such proof as precludes very reasonable hypothesis except that which it tends to support. It is proof to moral certainty, such proof as satisfies the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the trial judge.”
In the case of Lor & Ors v. The State 1980.8.11 SC p. 81 @ 99 Nnamani, J.S.C (of blessed memory) dealing with proof beyond reasonable doubt and its applicability in proving the commission of an offence as required by Section 135(1) and (2) of the Evidence Act

said:
“The Basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond reasonable doubt. Proof beyond reasonable doubt as Denning J (as he then was) stated in Miller v. Minister of Pensions (1947) 2 ALL E.R. 372, 373.
Does not mean proof the shadow of doubt. The taw would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man 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 case is proved beyond reasonable doubt but nothing short of that will suffice.”

The learned trial judge of the lower Court did consider the evidence adduced by the prosecution and the defence. He was satisfied that the prosecution proved the commission of the offence of armed robbery under Section 1 (2)(a) of the Robbery and Firearms (Special Provision) Act, (as amended) beyond reasonable doubts and according convicted the appellant.

Learned Counsel to the appellant contended that the learned

trial judge wrongly rejected the plea of alibi which was not investigated by the police. Counsel relied on the case of Onafowokan v. State (1987) NWLR No. 6 P.538 to reinforce that where an accused person asserted that he was not at the scene of the crime, therefore, he could not have committed the offence, the prosecution has a duty to investigate such assertion in order to disprove same. At this state, an accused person has no duty or onus of proving the alibi but for the prosecution to adduce credible evidence demolishing the assertions of the accused person.
The word “alibi” means “elsewhere.” when an accused person relies on alibi, it means that he was not at the scene of the crime, but elsewhere and he could not have been the one that committed the offence with which he has been alleged to have committed. In Osuagwa v. State (2013) 5 NWLR (Pt. 1347) p. 395 the Supreme Court when dealing with the plea of alibi by an appellant enunciated that alibi mean “elsewhere,” when an accused contends that he cannot be guilty of the offence with which he is charged because at the time of commission of the offence he was somewhere else, he raises the defence of

alibi. After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. That is the earliest opportunity a suspect has to raise the defence of alibi. He must state, in clear terms, the day, time and address of where he was when the police alleged that he committed the offence. In Court, where an accused person sets up the defence of alibi, evidence led by the accused person must be taken seriously. However, the onus is not on the accused person to establish alibi to the satisfaction of the Court but rather for the prosecution to disprove it. But, the police has no duty to disprove a worthless alibi. A plea of alibi is demolished if the prosecution adduces sufficient and cogent evidence to fix the accused person at the scene of the crime at the material time.
See also Ikomo v. State (1973) SC p. 231; Okponefe v. State (1962) 2 NSNLR P. 346; Yanor v. State (1965) 1 ALL NLR p. 193; Njovens v. State (1973) P. 17; Ozaki v. State (1990) 1 NWLR (Pt. 124); Gachi v. State (1965) NWLR (Pt. 333 and Chewmoh v. State (1986) 2 NWLR pt.22 p. 31.

The appellant did not place sufficient material facts before

the prosecution to enable it investigate the defence alibi. Having not done so, the prosecution was under no duty to investigate the alibi put up by the appellant. I am in full agreement with my learned brother Abiru J.C.A. when he said on page 20 of the leading judgment that:
“In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits 3 and 3A, clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant and the rejection of the defence of alibi by the lower Court cannot thus be faulted.” It is for the foregoing, and the fuller reasons contained in the leading judgment that I dismissed the appeal and affirm the judgment of the lower Court.

AMINA AUDI WAMBAI, J.C.A.: I have had the privilege of reading before now’ a draft copy of the leading Judgment just delivered by my learned brother, HABEEB A. O. ABIRU, JCA.

I agree that there is no merit in this appeal. It is hereby dismissed by me. The Judgment of the Lower Court as well as the conviction and sentence are hereby affirmed.

Appearances

Okechukwu Nwaeze For Appellant

AND

I. M. Samson, Assistant Director, Ministry of Justice, Kaduna State For Respondent