AYODEJI v. STATE OF EKITI (2020)

AYODEJI v. STATE OF EKITI

(2020)LCN/14890(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/EK/72C/2019

RATIO

CONSTITUTIONAL LAW: PRESUMPTION OF INNOCENCE

In law, there is a presumption of innocence in favour of any person accused in a criminal offence.
This presumption of innocence is constitutionally enshrined in Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended. This presumption also places a heavy burden on the prosecution to rebut that presumption before they can secure a conviction. That presumption can only be rebutted by the prosecution adducing sufficient and credible evidence to establish every ingredient of the offence charged. That burden can be said to be discharged where the evidence led at the trial establishes all and every essential of the offence charged. See Sections 131(1) and (2) and 132 of the Evidence Act 2011. See also the cases Almn (pt 1148) Shehu vs State (2010) 8 NWLR (pt 1195) 112, Nwaturuocha v State (2011) 6 NWLR (pt 1242) 170.
Thus in C.O.P v Amuta (2017) LPELR-41386(sc) Ogunbiyi JSC held as follows
“The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused person and not his business to prove his innocence. He can decide to keep mute from the beginning of the trial through the end. It is for the prosecution to make out a prima facia case against the accused person through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused, he cannot be called upon to enter his defence because in doing otherwise will undermine the constitutional presumption of innocence.
To discharge this burden would require that all the essential ingredients of the offence be established by credible evidence. Therefore where any of the essential elements of the offence is not made out by the totality of evidence adduced by the prosecution, it would mean that the burden has not been discharged and the accused will be entitled to an acquittal. This burden is required to be proved beyond every reasonable doubt. See Section 135 (1) of the Evidence Act 2011. PER OBI ELECHI, J.C.A.

EVIDENCE: MEANING OF PROOF BEYOND REASONABLE DOUBT

Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt or proof to the hilt. In other words, in the determination of whether the offence charged has been proved beyond reasonable doubt, minor doubts may creep in here and there in the course of evaluation of the totality of the evidence adduced which the Court may validly discountenance as irrelevant, then in such circumstance it would be said that no reasonable doubt has arisen as to the guilt of the accused. This is because it is only in mathematics that exactitude may be attained. See Dibie v State (2004) 14 NWLR (pt893) 284, Ewugba v State (LPELR-43833, Ukpong v State (2019) LPELR-46427 (sc) and Umar v State (2014) 13 NWLR (pt14225) 497. PER OBI ELECHI, J.C.A.

CRIMINAL LAW: CRIME OF ARMED ROBBERY

The crime of armed robbery is recognised by Sections 516 and 402 (2) (a) of the Criminal Code Law, Cap c 16 Laws of Ekiti State of Nigeria respectively.
To prove Armed Robbery, the essential ingredients required to prove same have been laid down in a plethora of cases such as Dawai v State (2017) LPELR-43835 (SC), Tanko v State (2018) LPELR-44715 (CA), Adeyemo v State (2015) LPELR- 24688 (SC),

Pius v State (2016) LPELR- 40657. These essential ingredients are as follows
(a) That there was robbery or series of robbery.
(b) That the robbery or each of the robberies was an armed robbery.
(c) That the accused person was either the robber or of the persons that committed the armed robbery.
It should be noted that breach of the above stated ingredients must be established by credible evidence beyond reasonable doubt. Thus where any of the ingredients is not proved, then the prosecution have failed to prove the offence beyond doubt.
The prosecutions evidence must flow from any of the following ways
(1) The confessional evidence of the accused has been tested, proven and admitted in evidence
(2) By circumstantial evidence which must be complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence.
(3) By direct evidence of an eye witness who actually saw the accused committing the offence. See Dawai v State (2017) LPELR-43835 (SC)
All the above stated ingredients must be proved beyond reasonable doubt; and the offence may be proved by one or a combination of any two of the above. See Igu v State (2017) 7 WRN 1 at 47, Emeka v State (2010) 1 WRN 41 at 64 , Adeosun v State (2007) 46 WRN 1 at 72, Alabi v State (1993) 7 NWLR (Pt 307) 511, Tanko v. State (2008) 18 NWLR (Pt 1114) 591. PER OBI ELECHI, J.C.A.

CRIMINAL LAW: CIRCUMSTANCES WHERE IDENTIFICATION PARADE CAN BE DISPENSED WITH

In the instant case, and as applicable to circumstances of this nature, it must be appreciated that there are instances where identification parade can be dispensed with viz
(a) Where there is good and cogent evidence linking the accused person to the alleged crime on the day of the incident.
(b) By the accused person’s confessional statement i.e. where the accused identified himself. See Usong v State (2010) 5 WRN 132.It is in his evidence that the Appellant confessed to the commission of the offence in his statement which was tendered and admitted as Exhibit 5 where he stated clearly the roles he played during the robbery operation. See Raheem Ayinde v State (2019) ALL FWLR (Pt 1004) 248 at 287. PER OBI ELECHI, J.C.A.

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

ARIYO AYODEJI APPELANT(S)

And

THE STATE OF EKITI RESPONDENT(S)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ekiti State High Court, sitting at Ado-Ekiti, delivered by Hon. Justice A.L. Ogunmoye on 27th day of April, 2018 convicting and sentencing the Appellant to 5 years imprisonment for Conspiracy and to death by hanging for the offence of armed robbery.
Summary of facts
The appellant, (ARIYO AYODEJI) and AYODELE OLUKAYODE were arraigned before the trial High Court for the offences of conspiracy and armed robberies contrary to Sections 516 and 402 (2) (a) of the Criminal Code Law, Cap. C16, Laws of Ekiti State of Nigeria respectively.

The respondent’s case before the trial Court was to the effect that on 27/3/2016, the Appellant and Ariyo Ayodeji were arrested with a bag at the boundary of Ondo/Ekiti State by the officers of Federal Highway Patrol. They were arrested with the bag on an unregistered Qlink Motorcycle and the bag contained some items which include a gun, five phones, a celestial church white garment. The Appellant and the said Ayodele Olukayode were handed over to the police at the Divisional Police Headquarters,

Ikere Ekiti by the arresting officers which included Inspr. Orimisan Joseph. During the course of investigation, after a careful search of the bag, SIM CARD was further discovered. The SIM was inserted in one of the phones recovered from them and call was initiated to one of the contacts on the SIM. It was discovered through the receiver of the initiated call that the phone that housed the SIM was snatched from the owner at gun point. It was also discovered that a Blackberry Bold 5 which was one of the five phones recovered from the Appellant belong to Chief (Mrs) Bunmi Arije who was a victim of armed robbery at Federal Housing Estate, Ado Ekiti on 18/3/2016. The woman came to the Station and claimed ownership of the said Blackberry Phone in the presence of the Appellant and his partner-in-crime.

Subsequently, the Appellant and Ayodele Olukayode were arraigned on four count charge of conspiracy to commit armed robbery and armed robberies contrary to Sections 516 and 402(2) (a) of the Criminal Code Law, Cap. C16, Laws of Ekiti State of Nigeria respectively via information and Proof of Evidence dated 19th January 2017 but filed on 27th January, 2017.

<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

The said four count charges were read and explained to the Appellant and other defendant and they pleaded NOT GUILTY to the charge.

The Respondent called four witnesses, while the Appellant testified in his defence and called no witness.

The learned trial Judge after due consideration and evaluation of the evidence adduced coupled with the written address found the offences of Conspiracy to commit Armed Robbery and Armed Robberies proved beyond reasonable doubt and thereby convicted and sentenced the Appellant and the second defendant, (Ayodele Olukayode) to death.
Dissatisfied with the judgment, the appellant has now appealed to this Honourable Court.

ISSUE FOR DETERMINATION
The Appellant formulated four (4) issues for determination from the five(5) grounds of Appeal contained in his Notice of Appeal filed in the Registry of this Court on 14th day of June, 2020.
(a) Whether the Trial Court was right to ascribe probative value to the Appellant’s alleged confessional statement despite the Appellant’s retraction of the statement and lack of corroboration of the confessional statement? Distilled from ground 2 of the

Notice of Appeal.
(b) Whether the Trial Court was right to convict the Appellant on his alleged confessional statement and the hearsay evidence of PW3 regarding the voluntariness of the statement and the circumstances under which the alleged confessional statement was obtained from the Appellant? Distilled from ground 1 of the Notice of Appeal.
(c) Whether the Trial Court was right to have relied on the extra-judicial statement of a complainant who was not called as a witness in convicting the Appellant for conspiracy to commit armed robbery and armed robbery. Distilled from ground 3 of the Notice of Appeal.
(d) Whether the Trial Court was right when it held that the Prosecution had proved the offence of armed robbery and conspiracy against the Appellant beyond reasonable doubt? Distilled from ground 4 of the Notice of Appeal.

ISSUE ONE
Whether the Trial Court was right to ascribe probative value to the Appellant’s alleged confessional statement despite the Appellant’s retraction of the statement and lack of corroboration of the confessional statement? Distilled from ground 2 of the Notice of Appeal.

The law it is submitted is settled that a defendant may be convicted on his confessional statement alone provided the confessional statement is voluntary and tested for veracity, as stated in the case of Mustapha v. State (2008) WRN (Vol. 2) 76 at 81 – 82, P. 94; At the Trial Court, the Respondent tendered through PW3, a confessional statement allegedly made by the Appellant. When the statement was sought to be tendered, the Appellant’s counsel objected on the ground that the statement was not signed or executed by the Appellant and that the Appellant had no knowledge of the statement. The Court however admitted same stating that retraction does not detract from admissibility of a confessional statement, see page 36 of the Record of Appeal.

It is contended that while evaluating the confessional statement in its judgment, the trial Court wrongly ascribed evidential value to exhibit 5, the alleged confessional statement which was not signed by the Appellant, but only a thump impression, that could have been made by anyone.

The argument of the Appellant is that there is no where in the judgment where the trial Court took steps to verify if the Appellant

actually made the confessional statement in exhibit 5. Rather the trial Court dismissed the disputation of the defendant on the grounds that having raised the issue of involuntariness alongside retraction, the Appellant’s objection to the confessional statement was an after thought.

The trial Court it is submitted failed to rightly apply the tests in R V Sykes (1913) CR App Report 224, 230 by failing and /or refusing to determine and ascertain:
(a) If the Appellant executed or had knowledge of the content of the confessional statement and that the confessional statement tendered in evidence was the same statement offered by the defendant to the police and
(b) That the evidence of PW1, PW2 PW3 and PW4 were not tainted and doctored or insufficient to corroborate exhibit 5.

This he submitted has occasioned a miscarriage of justice by ascribing probative value to the uncorroborated exhibit 5, the Appellants alleged confessional statement. He urged the Court to resolve this issue in this favour.

Argument on issue two
Whether the Trial Court was right to convict the Appellant on his alleged confessional statement and the

hearsay evidence of PW3, regarding the making of the statement and the circumstances upon which the alleged confessional statement was obtained from the Appellant? Distilled from ground of the Notice of Appeal.

It is the evidence of the P23 that his colleague Cpl Ashiru Olarewaju, who died five months prior to the trial, obtained and recorded the Appellant’s alleged confessional statement. He also testified that the 1st and 2nd defendants were taken before a superior police officer, whose identity was not disclosed. He gave evidence that when the Late Cpl Ashiru Olarewaju obtained statement of the 2nd complainant, Chief Mrs. Bunmi Arije, he was present. However, there is no evidence that he was present when the statement of the Appellant was obtained.

PW3 despite not being present when exhibit 5 was recorded, gave evidence on the making and obtaining of the alleged confessional statement in contravention of sacrosanct principle of our criminal jurisprudence on tendering of a confessional statement by the police officer who recorded the statement or who was present when the statement was recorded.

The Appellant denied making the

confessional statement-exhibit 5. In concluding argument on this issue, he contended that with the case of Oguno vs. State (2013) 15 NWLR Pt. 1376 1 which is authority for the proposition that any member of a police investigation team can tender the recorded statement made by an accused person provided he was present when the alleged statement was recorded. A police officer who was not present when the statement was taken cannot tender the statement in evidence.

Based on the foregoing, the Court is urged to set aside the conviction of the Appellant based on an unreliable and inaccurate confessional statement. Also to resolve this issue in their favour.

Argument on issue 3
Whether the Trial Court was right to have relied on the extra-judicial statement of a complainant who was not called as a witness in convicting the Appellant for conspiracy to commit felony and armed robbery. Distilled from ground 3 of the Notice of Appeal.

The Appellant was charged with and convicted of a four-count charge of armed robbery and conspiracy to commit armed robbery. The first two counts alleged felony against one Mrs. Stella Faniyi, the PW4, while the third

and fourth were against one Chief Bunmi Arije, who was not called as a witness.

Further on this issue, it is submitted that the trial Court ought not to have convicted the Appellant on Courts 3 and 4 as the alleged victim who was a vital witness to the prosecution’s case was not called as a witness. Secondly, her extra-judicial statement that was tendered through PW3 and was not subject to cross-examination ought not to have been admitted in evidence or relied on by the Court in establishing the Appellant’s guilt.

The Court is urged to resolve this issue in favour of the Appellant.

Argument on issue four
Whether the Trial Court was right when it held that the Prosecution had proved the offence of armed robbery and conspiracy against the Appellant beyond reasonable doubt? Distilled from ground 4 of the Notice of Appeal.
Learned Appellant’s counsel stated that:
InSmart v. State (2016) LPELR-40827 (SC) armed robbery was defined simply as stealing while armed. To establish the offence of armed robbery, the Prosecution has to prove the following as stated by the Apex Court in the case of Babarinde v. State (2013) LPELR

– 21896.
With respect to the charge of armed robbery, the law is settled that in order to secure a conviction that prosecution must prove the following beyond reasonable doubt.
a. That there was a robbery or series of robberies.
b. That each of the robberies was an armed robbery.
c. That the accused person was one of those who took part in the armed robbery.
See: Bozin v. The State (1985) 2 NWLR (8) 455; Afolalu v. The State (2010) 15 NWLR (Pt. 1220) 584; Eke v. The State (2011) 3 NWLR (Pt. 1235) 589.

For armed robbery and conspiracy to commit armed robbery to be established, all the essential elements of the offence must be proved conjunctively by credible evidence thereby warranting a conviction. The Trial Court relied chiefly on the alleged confessional evidence of the Appellant, and the tainted and unreliable evidence of the Plaintiff’s witnesses as well as the extra judicial statement of Mrs. Arije, in convicting the appellant.

To argue this issue further, it is contended that save the alleged confessional statement of the Appellant, the Prosecution did not prove beyond reasonable doubt that the Appellant

took part in the armed robbery PW1 to PW3 were only able to testify that stolen materials were found in the Appellant’s possession. However, in possession of stolen items does not infer that a person committed an armed robbery, it can only invoke the doctrine of recent possession of stolen property.

In any event, the Appellants denied that any of the stolen items were found in his possession. The Prosecution who claimed that the picture of the appellant and the co-accused were found on the stolen infinix phone did not tender the phone in evidence, or even tender a print out of the pictures to prove that the phone was recovered from the Appellant or the co-accused, or to prove conspiracy, that the Appellant and the co-accused knew each other before their arrests.

It is his view that there is no evidence linking the Appellant to the commission of the crime and, the evidence of the Prosecution is so manifestly unreliable that the Trial Court ought not to have relied on it is convicting the Appellant.

Based on the foregoing, it is submitted that the prosecution did not prove its case beyond reasonable doubt as several other probabilities and

possibilities can be inferred from the evidence before the Court. The Court was wrong to adopt the prosecutions analysis on the evidence adduced, given the various permutations deducible from the evidence.

Finally, the Court is urged to resolve this issue in the favour of the Appellant and to allow the appeal.

On their part, the respondent formulated a sole issue for determination
(a) Whether from the totality of the evidence adduced by the prosecution, the learned trial judge was not right to have found that the prosecution proved the allegations of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt against the Appellant to warrant conviction and sentence (grounds 1-4).

ARGUMENT ON THE SOLE ISSUE
Whether from the totality of the evidence adduced by the Prosecution, the learned trial judge was not right to have found that the Prosecution proved the allegations of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt against the Appellant to warrant conviction and sentence. (Grounds 1-4).

Though in the first allegation, the Appellant was convicted of and subsequently sentenced of

conspiracy, it has been held that the proper approach to an indictment which contains offence of conspiracy as a charge and a substantive charge is to deal first with the main charge, and thereafter the charge of conspiracy. See OKANLAWON V. STATE (2015) LPELR -24838 (SC) Per ARIWOOLA, J.S.C. (Pp. 44-45, paras. G-A).
On this Principle, therefore, the Court is to consider first the offence of Armed Robbery.
ARMED ROBBERY
It is a well-established principle of law that for the prosecution to succeed in proving and sustaining an allegation of armed robbery, three ingredients must be contemporaneously proved. These are:
1. That there was a robbery;
2. That the robbery was an armed robbery; and
3. That the accused person took part in the robbery.
See Attah v State (2010) All FWLR (Pt. 540) 1224 at 1256, Sowemimo v State (2011) All FWLR (Pt. 5919) 1064 at 1086.

Learned respondent counsel also stated that it is also a time-honoured principle of law that the guilt of an accused person can be proved by any of the following three ways. These are:
(1) By a voluntary confessional statement of the accused persons;
(2) By

circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him; and
(3) By evidence of eye-witness or witnesses otherwise known as direct evidence, See: MICHAEL TAIYE vs STATE (2018) ALL FWLR (PT. 969) Pg 737 at Pages 757-758; Paras. G-B, ADAMU VS STATE (2018) ALL FWLR (Pt. 925) pg. 48 at pg. 79, Paras D-E. OMOREGIE VS STATE (2018) ALL FWLR (Pt. 925) 1 at 17 para.D. FAMUYIWA VS STATE (2018) ALL FWLR (Pt. 919) 1 at 24 Paras. F-G.

The Appellant contended that the respondent failed to prove all the ingredients of armed robbery as required by law. He strongly contended that if there was robbery, the fact of the said armed robbery incident, possession of dangerous weapons and the involvement of the Appellant is seriously in doubt. He contended in paragraphs 5.1 to 5.11 of his brief that the confessional statement of the Appellant was not signed or thumb printed by him and that he had no knowledge of the statement. This according to him calls to question the veracity and genuineness of the statement. He contended further that the learned

Trial Court did not take any steps to verify if the Appellant actually made the confessional statement. He concluded by arguing that the Trial Court wrongly ascribed evidential value to the confessional Statement-Exhibit 5.

It is submitted that the contention of the Appellant is not only misconceived, misplace but misdirected. The Respondent is fully aware of the legal burden place on her that the burden of proof rest squarely on her and same must be discharged beyond reasonable doubt as entrenched in Section 135 (1) & (2) of the Evidence Act, 2011.

It is lucid and clear from the record that though the Appellant denied making Exhibit 5 and objected to its admissibility at the point the Prosecution was about to tender it on the basis of retraction, the Trial Court however admitted same in tandem with the age long and well established principle of law that retraction of a statement by the accused person does not debar the Court from admitting same.

It is also clear that the Appellant denied knowledge of EXHIBIT 5 as contained in the extract which really connotes that he never made statement to the police. It is a well-established principle

of law that the denial of an accused person of making statement to the police is an issue of fact to be determined or decided in the judgment, as the issue does not affect admissibility of the statement. See: IDOWU VS STATE (2000) FWLR (PT. 16) P. 2672., AIGUOREGHIAN VS STATE (2004) ALL FWLR (PT. 195) 716 & NWAEBONYI VS STATE (1994) 5 NWLR (PT. 343) 138.

The Appellant, in paragraphs 5.12 to 5.12 of his brief alleged that the testimonies of the Respondent’s witnesses and the Exhibits recovered and those tendered are riddled with contradictions and the contradictions, according to him are fatal to the Respondent’s case which ought to have raised a red flag/doubt in the mind of the Court. It is submitted that the argument of the Appellant’s is not only misleading but seriously at variance with the evidence adduced by the Respondent’s witnesses. It is not only the items listed by PW1, Sgt. Bamidele Abiodun of the Divisional Police Headquarters, Ikere Ekiti that were recovered during investigation and he did not state in his evidence that the investigation of the case started and ended in the said station. Each of the police officers

who participated in the investigation of the case clearly stated the roles they played and the items recovered.

On the alleged contradictions on the evidence of the prosecution, it is submitted that the evidence is not contradictory. And that even if contradictory, they are not fundamental in nature nor even substantial brought to the main issue in question as to affect the credibility of the evidence; see Theophilus v The State (1996) 1 NWLR (Pt. 423) 139, Khaleel v State (1997) 8 NWLR (Pt. 516) 237, Iko v State (2000) 9 NWLR (Pt. 671) 54., Afolalu v State (2009) 13 WRN 51 at 72, Abokokuyanro v State (2011) All FWLR (Pt 597) 709 at 722, Galadima v State (2017) LPELR-43460 (SC).

On whether there is need to conduct identification parade in order to determine the actual involvement of the Appellant in the crime, since same took place in the night. It is submitted by the Respondent that in the light of the evidence adduced by the Respondents, the non-conduct of an identification parade is not in any way fatal to the Respondents case. According to Learned counsel, it is trite that the question whether the Appellant was properly identified or not is a

question of fact to be considered by the trial judge in view of the totality of evidence led. Where an identification is found to be spontaneous and natural, the trial Court would not be wrong to attach weight to it, unless there are other exculpatory evidence in favour of the accused person. See Otti v State (1991) 8 NWLR (Pt. 207) 103 at 117.

In the case at hand, it is contended that there was no mistake in the identity of the Appellant considering the unchallenged, confessional and circumstantial evidence adduced by the respondent which clearly fixed and linked the Appellant with the commission of the alleged offence through the evidence of PW1-PW4. Furthermore, it is settled that there are instances where conducting of identification parade can be dispensed with viz.
(a) Where there is good and cogent evidence linking the accused person to the alleged crime on the day of the incident.
(b) By the accused persons confessional statement, he identified himself; see Usong v State (2010) 5 WRN 132.

It is in evidence that the Appellant confessed to the commission of the alleged offences in his statement tendered and admitted as exhibit 5 where

he stated clearly the roles he played during the robberies. See Raheem Ayinde v State (2019) ALL FWLR (Pt 1004) 248 at 287. From the above, it is submitted that the evidence of PW1- PW2 coupled with Exhibit 5 clearly eliminated the necessity of conducting an identification parade in this case. A free and voluntary confession by an accused person, if direct and unequivocal and if satisfactorily proved is sufficient to ground a conviction. See: Haruna v A/G Federation (2012) ALL FWLR (Pt. 632) 1617, Alarape v State (2001) ALL FWLR (Pt. 41) 1872, Irene Nguma v A/G, Imo State (2014) 16 WRN.

It is trite that when the evidence adduced by the prosecution conclusively points to the accused as the perpetrator of the crime alleged to have been committed and the evidence is tested, scrutinized and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt in the prosecution’s case by preponderance of probabilities. It is submitted that the reasoning of the Learned Trial Court on the Involvement of the Appellant in the commission is very accurate and urged the Court to so hold. What is more, what an appeal

has to decide is whether the decision of the trial Court of intermediary appellate Court was right and not what its reasons were. See: NDUKWE vs STATE (2009) ALL FWLR (PT. 464) PG. 1447 @ 1480.

It is also submitted that no evidence has been adduced by the Appellant upon which doubt can be elicited by the trial Court and that explained why the verdict of guilty was returned against the Appellant.
This Court is urged to resolve this issue against the Appellant.

On evaluation of evidence, learned respondent counsel submitted that since the trial judge has unquestionable evaluated the evidence and justifiably appraised that facts, it is no more the business of the appellate Court to interfere and to substitute its own views for the view of the trial Court. See Abdulmumini v FRN (2018) ALL FWLR (PT 969) 774 at 792, Nicholas Okoh v. Nigeria Army (2018) all FWLR (Pt. 963) 1863 at 1875, Bolanle v State (2010) WRN vol. 4 page 26 at 34. The Court is urged to resolve this issue in favour of the Respondent.

On conspiracy, it is contended that once agreement is shown to exist between conspirators, evidence admissible against one conspirator is equally

admissible against the others. See Gbenga Osho v State (2018) All FWLR (Pt. 966) 233. The offence of conspiracy is consummated once the parties are ad idem on the manifestation of such intent even if in the long run, the conspirators reneged in the pursuance of their agreement. He stated that the offence of conspiracy is usually planned and hatched in secrecy, therefore in proving it, direct evidence is not indispensible and it is open to the Court to infer compliancy from the fact of doing things towards common end. See Emenegon v State (2009) Vol. 31 WRN 66 at 73-75, Adesina v State (2010) 35 WRN 49 at 69.

The Appellant made exhibit 5 during police investigation. So also did PW2 Ayodele Olukayode made Exhibit 6.
From Exhibit 5 & 6, it is submitted that conspiracy can be inferred.

It is a well-entrenched principle of law that the best evidence of conspiracy is usually obtained either from one of the conspirators or from inferences. The overt act or omission is often the only evidence which translates into the actus reus and the actus reus of each of the conspirators is often regarded as the only proof of criminal agreement to commit a crime

which is what is called conspiracy.
See SAIDU HARUNA VS THE STATE (2018) ALL FWLR (Pt. 969) 689 @pp: 734-735; paras G-A.

It has been held that proof of common intention is through inference from the fact and circumstances of the case, See NWANKWOALA v STATE (2006) 12 SEM (Pt. 2) 267

It is trite that where more than one are accused of joint commission of a crime, it is enough to prove that they participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. In other words, where common intention is established, a fatal blow or gunshot, though given by one of the parties, is deemed in the eyes of the law to have been given by all those present and participating. The person who actually delivered the fatal blow is, in such a case, no more than the hand by which others are struck.
See: OMOTOLA VS STATE [2000] ALL FWLR (PT464) PG 1490 @1534 ALA VS STATE

[2006] 7 SCNJ 566; IKEMSON VS STATE [1999] 5 NWLR [Pt123] 505.

The Court is urged to dismiss the appeal for lacking in merit and affirm the decision of the lower Court of 27/4/2018 wherein the appellant was convicted and sentenced to death by hanging for the offence of armed robberies and five years of imprisonment for the offence of conspiracy.

The Appellant filed a reply brief dated 30/10/2020 and filed on 2/11/2020, I have read through the reply brief. It is nothing more than an rearguing the issues already taken care of in the main Appellant’s brief of argument. This is contrary to the Rules of this Court as no new issue from the Respondent’s brief of argument was mentioned.
As a result, the reply brief of the Appellant is hereby discountenanced.

RESOLUTION OF ISSUE
This appeal is against the judgment of Ekiti State High Court sitting at Ado Ekiti delivered by Hon. Justice Ogunnoye on the 27th day of April 2018 in charge NO HAD/32c/2017.

Before the said High Court, the Appellant was charged with the offence of conspiracy and armed robberies contrary to Sections 516 and 402 (2)(a) of the Criminal Code Law of Nigeria respectively.

The learned trial judge after due consideration of the evidence adduced coupled with the written addresses found the offences of conspiracy to commit armed robberies and armed robbery proved beyond reasonable doubt and thereby convicted and sentenced the appellant and second defendant (Ayodele Olukayode) to death by hanging.

Dissatisfied with the judgment, the Appellant filed a notice of Appeal against the whole judgment on the 30th May 2018.

The Appellant has then settled his brief of argument pursuant to the Amended Notice of Appeal dated 20th January 2020 and filed on the 04/04/2020. In compliance with the rules of this Court, the parties filed and exchanged brief of argument. The Appellant brief of argument was dated 4th June 2020 and filed same date. The Respondent brief of argument dated 5th October 2020 but filed same date.

This Appeal will be considered more meritoriously on the sole issue as formulated by the Respondent thus
“Whether from the totality of the Evidence adduced by the prosecution, the learned trial judge was not right to have found that the prosecution proved the allegation of

conspiracy to commit armed robbery and armed robbery beyond reasonable doubt against the Appellant to warrant conviction and sentence (grounds 1-4)

accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused person and not his business to prove his innocence. He can decide to keep mute from the beginning of the trial through the end. It is for the prosecution to make out a prima facia case against the accused person through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused, he cannot be called upon to enter his defence because in doing otherwise will undermine the constitutional presumption of innocence.
To discharge this burden would require that all the essential ingredients of the offence be established by credible evidence. Therefore where any of the essential elements of the offence is not made out by the totality of evidence adduced by the prosecution, it would mean that the burden has not been discharged and the accused will be entitled to an acquittal. This burden is required to be proved beyond every reasonable doubt. See Section 135 (1) of the Evidence Act 2011.

Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt or proof

to the hilt. In other words, in the determination of whether the offence charged has been proved beyond reasonable doubt, minor doubts may creep in here and there in the course of evaluation of the totality of the evidence adduced which the Court may validly discountenance as irrelevant, then in such circumstance it would be said that no reasonable doubt has arisen as to the guilt of the accused. This is because it is only in mathematics that exactitude may be attained. See Dibie v State (2004) 14 NWLR (pt893) 284, Ewugba v State (LPELR-43833, Ukpong v State (2019) LPELR-46427 (sc) and Umar v State (2014) 13 NWLR (pt14225) 497.

The Appellant was arraigned, tried and convicted for the offences of conspiracy to commit armed robbery and armed robbery. The crime of armed robbery is recognised by Sections 516 and 402 (2) (a) of the Criminal Code Law, Cap c 16 Laws of Ekiti State of Nigeria respectively.
To prove Armed Robbery, the essential ingredients required to prove same have been laid down in a plethora of cases such as Dawai v State (2017) LPELR-43835 (SC), Tanko v State (2018) LPELR-44715 (CA), Adeyemo v State (2015) LPELR- 24688 (SC),

combination of any two of the above. See Igu v State (2017) 7 WRN 1 at 47, Emeka v State (2010) 1 WRN 41 at 64 , Adeosun v State (2007) 46 WRN 1 at 72, Alabi v State (1993) 7 NWLR (Pt 307) 511, Tanko v. State (2008) 18 NWLR (Pt 1114) 591.

At page 43 of the record, PW4 stated as follows:
“I know the defendant. On the 1/03/2016 by 5.00 an, I was about going to church for a morning programme. When I drove out of the compound, I saw a commercial motorcycle with the defendants on it. They blocked my car with the bike. One was on the bike while the other jumped down and pointed a gun at me. I then started crying. The one on the Bike (1st defendant) then asked the 2nd defendant to make haste, the 2nd defendant then snatched my bag. The 2nd defendant jumped on the bike and then drove away:

This is a clear case of robbery which is the first ingredient of the proof of armed robbery. Secondly, PW4 as per has testimony above when he stated thus:
“When I drove out of my compound, I saw a commercial motor cycle with the defendants on it, they blocked my car with the bike, one of them on the bike while the other jumped down and pointed a gun at

me…”
This is the proof of the second ingredient of proof of armed robbery.

The third and last ingredient to be proved in a charge of armed robbery, is whether the prisoner was or amongst the persons that committed the armed robbery charged. This therefore calls to issue the identity of an accused person as a culprit in the offence charged. Thus even where there is evidence that armed robbery was committed, the prosecution still needs to call sufficient credible evidence which links the accused person to the offence charged. The settled law is that, the question whether an accused person has been properly linked or identified as the person who committed the offence charged is a question of fact to be determined by the trial Court from the admissible evidence adduced by the prosecution. The Supreme Court has always admonished that, where the identity of the accused person as a party or participant in the crime charged is in dispute, the trial Court should warn itself and be cautious in the evaluation of the evidence led for that purpose. The Court should therefore meticulously examine the evidence so as to see whether there are weaknesses

in the evidence adduced which is capable of endangering any allegation that the accused was sufficiently identified by the witness or witnesses at the time of the commission of the offence charged. This is particularly so when the punishment or penalty for armed robbery, is the highest known to our law, which is death. See Ndukwe v State (2009) NWLR (Pt. 1139) 43, Nwaturuocha v State (Supra), Adamu V STATE (2017) LPELR-41436 (SC), Kekong v State (2017) LPELR-42343 (SC), Alebiosu v State (2016) LPELR – 41359(CA).
Where the identity of an accused person has been put in issue, it is necessary that the evidence adduced is concrete, cogent, and credible, pointing beyond reasonable doubt that the accused person has been properly linked with the commission of the offence charged. It is however settled law that the identity of an accused person at the time the offence was committed must be ascertained. In the instant case, and as applicable to circumstances of this nature, it must be appreciated that there are instances where identification parade can be dispensed with viz
(a) Where there is good and cogent evidence linking the accused person to the

alleged crime on the day of the incident.
(b) By the accused person’s confessional statement i.e. where the accused identified himself. See Usong v State (2010) 5 WRN 132.It is in his evidence that the Appellant confessed to the commission of the offence in his statement which was tendered and admitted as Exhibit 5 where he stated clearly the roles he played during the robbery operation. See Raheem Ayinde v State (2019) ALL FWLR (Pt 1004) 248 at 287.
Also it was discovered during investigation that a Blackberry Bold 5 which is one of the five phones recovered from the Appellant belong to Chief (Mrs) Bunmi Arije who was a victim of armed robbery at Federal Housing Estate, Ado-Ekiti on 18/3/2016.
The evidence of PW1 and PW4 even though not challenged fixed the Appellant as one of those who robbed their victims on the fateful day without any iota of contradiction. The law is that identification parade should be limited to cases of real doubt and never to be conducted for purely cosmetic reasons as Appellant is urging the Court to do. See: Ikemson v State (1989) 3 NWLR (PT 110) 455, OGOALA V STATE (1991) 2 NWLR (pt 175) 509; Awosika v State (2010) 18 WRN 149.

In view of the foregoing, I have a strong conviction in my mind that the evidence of PW1, PW2, PW3 and PW4 coupled with Exhibit 5 (the Appellant confessional statement) clearly eliminated the necessity of conducting an identification parade in the case. This issue is resolved in favour of the Respondent.

The Appellant made a confessional statement-Exhibit 5. However the Appellant is challenging the right of the trial Court to ascribe probative value to same despite the Appellants retraction of Exhibit 5 and lack of corroboration of the confessional statement provided that the confessional statement is voluntary and tested for veracity. See: MUSTAPHA V STATE (2008) WRN (VOL.2) 76 AT 81

In admitting Exhibit 5 as an exhibit, the trial Court stated thus at page 89 of the records thus.
“The issue of voluntariness was an after thought, having regard to the qualitative evidence tendered by the prosecution and accepted by me. It was the undiscredited evidence of PW1 that the 1st defendant claimed ownership of the infinix phones, which was one of the phones recovered from the defendants and the pictures of the

defendants were on the phone. This has punctured the claim of the 1st defendant that he did not know the 2nd defendant before their arrest”.
I agree with the learned trial Court’s ruling on this issue and I have nothing else to add.

The Appellant in his brief of argument alleged that the inconsistency in the testimony of the prosecution’s witnesses of the prosecution’s witnesses regarding the recording of confessional statement could have raised doubts in the mind of the trial Court on the genuiness of the statement. The alleged inconsistency appear to be that PW1 (Sgt. Bamidele Abiodun) testified that after the Appellant was arrested, he obtained the Appellant statement. On the other hand, he testified that the statement was obtained not by PW1 but by a deceased officer, CPL Ashiru Olarewaju. The APPELLANT TESTIFIED THAT ONE Omirauti obtained his statement.
Whether these contradictions if so called are material and substantial call for serious attention to the Respondents case. It is trite law that for contradictions to be material and damaging to the prosecution’s case, it must be substantial and fundamental to

the main issue in question so as to affect the credibility of the witnesses evidence. See: Theophilus v State (1996) NWLR Pt.423, Khaleel v State (1997) 8 NWLR (Pt 516) 237, Iko v State (2000) 9 NWLR (Pt 671) 54.
To buttress the point being made, the Court held in the case of Afolalu v State (2009) 13 WRN 51 at 72 that
“… the law does not insist that there must be no contradictions in the evidence of witnesses called by a party on any issue in contention. The principle is that the contradictions between witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by the prosecution or to the reliability of its witnesses” Also in the case of Abokokuyanro v State (2011) All FWLR (Pt 597) 700 para B, it was held by the supreme Court as follows:
“Two or more pieces of evidence may seem to contradict one another or vary. Where the discrepancy or difference is minor, it does not destroy the credibility of the witnesses, it makes no difference” see also Galadima v State (2017) LPELR -43469 (SC).
From the alleged inconsistencies or contradictions as herein before

highlighted, I do not see same as fundamental or substantial enough to affect the credibility of the evidence of the prosecution’s witnesses. Infact, it makes no difference to the case. See Galadima v State (Supra).

On the recovered items after the robbery, Appellant submitted that the items even if stolen do not corroborate the finding of the trial Court that the Appellant obtained the items from the complaints by violence or threat of violence or that the Appellant actually partook in the robbery. According to him, the Appellant could have been a receiver of stolen property, and the complainant may have been a disposed of the properties by any other means other than armed robbery. With due respect to learned Appellant counsel, this argument and submissions is highly selfish in nature because a man who is in possession of stolen goods soon after the theft is either the thief or has received stolen goods knowing them to be stolen, unless he can amount for his possession. See Kolawole v State (2015) LPELR – 24400. In this case, no explanation was offered to explain his account for his possession. This issue is resolved in favour of the

Respondent. The evidence available in the record has sufficiently established the offence of armed robbery and not the doctrine of recent possession as the Appellant tried to posit.

On evaluation of evidence, it is trite that the function of evaluating the evidence of parties is the function of the trial Court that saw, heard and watched the demeanor of witnesses. In this case, no evidence has been adduced by the Appellant upon which doubt can be elicited by the trial Court that was the more reason why the trial Court returned a verdict of guilt against the Appellant. The trial Court has unquestionably evaluated the evidence on record and justifiably appraised the facts, it is no more the business of the Appellate Court to interfere and substitute its own views for the view of the trial Court; See Nicholas Oko v Nigeria Army (2018) All FWLR (Pt 963) 1863 at 1875. See also Bolanle v. State (2010) WRN (Vol. 4) 26 at 34.

Now, the offence of conspiracy to commit armed robbery is created by Section 6(b) of the Robbery and Firearms (Special Provisions) Act. The offence of conspiracy is not defined in that provision. However conspiracy is defined as an

agreement between two or more persons to commit an unlawful act or to do a lawful act by unlawful means.
It should be noted that the crime of conspiracy is one that is always hatched in absolute secrecy. It is therefore not always easy to determine at a glance what conspiracy is. Thus the Courts always make reference to the facts adduced in order to see whether or not there is conspiracy. Generally, the agreement to do unlawful act is inferred from the acts done by the conspirators in furtherance of the act for which the conspiracy was hatched.
The Appellant in this case was charged with conspiracy to commit armed robbery. It is the law that in order for the prosecution to successfully prove the charge of armed robbery, the evidence adduced must establish that:
(a) There was an agreement between the Appellant with other persons(s) to do or cause to be done an unlawful act or a lawful act by unlawful means.
(b) That the unlawful act agreed to be committed is armed robbery.
(c) That the conspirators did some act or made an omission geared towards the commission of robbery and.
(d) That each of the conspirators individually

participated in the act that constitute the conspiracy.
Once the evidence adduced by the prosecution establish those facts beyond reasonable doubt, it would be safe to conclude that the conspiracy has been proved beyond reasonable doubt. See Salawu v State (2011) LPELR-8252(SC) Yakubu v. State (2014) LPELR-22401(SC) Balogun v. State (2018) LPELR -44215(SC) and Adepoju v. State (2018) LPELR -44355(SC).
The Appellant made Exhibit 5 and Exhibit 6 which was equally made by the second Defendant. From both exhibit the trial Court unquestionably inferred conspiracy between the parties to commit armed robbery. I agree with him.
After carefully reviewing the totality of the evidence adduced at the trial, I am of the firm view that the findings of the trial Court and conclusions there from, are supported by the evidence on record. PW1 particularly narrated thus.
“…she stated that another phone was also collected from her at gun point and it was Samsung sliding phone. I then asked the defendant to respond to what the women had said. The 1st defendant responded by saying that the said Samsung phone was at that time with his wife at Akure in Ondo

State. The 1st defendant described the location of the wife at Abusoro in Akure and I went there. On my arrival, I then demanded for the phone from her after I explained to her what her husband told me about the phone. She then gave me the phone”.
Other extracts from the victims of the armed robbery (Chief Mrs. Bunmi Arije) came to the police station and reclaimed her Black-Berry phone snatched from her with her bag at Federal Housing Estate, Ado Ekiti.
These set of facts constitute strong and compelling circumstantial evidence that there was an agreement between the Appellant and Ayodele Olukayode (2nd defendant). such evidence was in no way controverted. I therefore hold that the learned trial judge was right when he found that the charge of conspiracy to commit armed robbery against the Appellant was proved beyond reasonable doubt. The issue is resolved in favour of the respondent.

On the whole, I hold that this appeal is lacking in merit. It is accordingly dismissed. The judgment of Ekiti State High Court sitting at Ado-Ekiti, delivered on the 27th day of April 2018 by Hon. Justice A.L. Ogunmoye convicting and sentencing the Appellant

to five years imprisonment for conspiracy and to death by hanging for the offence of armed robbery is hereby affirmed. Appeal dismissed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

Appearances:

TOPE ADEBAYO, ESQ. For Appellant(s)

JULIUS AJIBARE, ESQ. (DPP), with him, K. S. ADEYEMO (SLO) and OLUWATOYIN OGUNDANA, ESQ. (L.O) For Respondent(s)