BABALOLA v. STATE (2021)

BABALOLA v. STATE

(2021)LCN/15145(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/IL/53C/2020

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

OLABODE BABALOLA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

MEANING OF THE OFFENCE OF CONSPIRACY

The offence of conspiracy has been defined in the case of Bande vs The State (2017) All FWLR Pt. 908 P.1878 @1880, thus: “Conspiracy is an offence that is often deduced or inferred from the acts of the parties thereto, which are directed towards the realization of their common or mutual purpose or agreement. Conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful punishable if for a criminal object or for the use of criminal means. While conspiracy in the penal code has been defined as agreement by two or more persons to do or caused to be done: a. An illegal act, or b. An act which is not illegal by illegal; means Thus, there can be no conspiracy unless at least two persons conspired.” PER IBRAHIM SHATA BDLIYA, J.C.A.

POSITION OF THE LAW REGARDING THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF CONSPIRACY

The essential elements or ingredients of the offence of conspiracy are enunciated in the case of Adeleke vs The State (2017) All FWLR Pt. 878 P.519 @ 522 thus: (a) “An agreement between two or more persons to do or cause to be done some illegal acts or some acts which is not illegal by illegal means; (b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement; and, (c) Specifically, that each of the accused persons individually participated in the conspiracy.” In Alatise vs The State (2013) All FWLR Pt. 686 P.552 @ 557-577, the Court espoused that: “The essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful thing, which is contrary to or forbidden by law, whether that things be criminal or not and whether or not the Accused had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the fact of doing things toward a common purpose. In the instant case, where the prosecution failed to establish a conspiracy among the Accused, they were wrongly convicted for.” In order to prove the commission of the offence of criminal conspiracy, the following ingredients must be proved by cogent evidence: “(a) There must be consent of two or more persons. (b) There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly i.e. mens rea. (c) The secret intention must have been translated into an overt act or omission or mutual consultation and agreement i.e actus reus.” See Adeleke vs The State (2017) All FWLR Pt. 878 P.519 @ 522. PER IBRAHIM SHATA BDLIYA, J.C.A.

HOW THE OFFENCE OF CONSPIRACY CAN BE ESTABLISHED

Over the years, the Courts have had by a litany of judicial decisions developed a way to establish the commission of the offence of conspiracy by way of inference based on the facts and or the evidence before it. This is so because it has not been easy to adduce direct evidence to prove the commission of criminal conspiracy, having regard to the secretive nature of the offence. The difficulty in proving the offence of conspiracy has been espoused in the case of Ogogovie vs The State (2016) All FWLR Pt. 847 P. 425 @ 447, thus: “However, one is mindful that the secrecy with which criminals perpetrate their crimes or even the meeting of minds has tended to create difficulties for the prosecution in many cases of no eye witness and so confession in such situations alone without corroboration may suffice to support conviction as the Court is satisfied of the truth of such a confession. The other area of solution can be by deduction from the inference from the act of the parties in such inferences.” In Onyenye vs The State (2012) All FWLR Pt. 643 P. 1810 @ 1823, the Apex Court enunciated that: “Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not to know themselves and not to have agreed to commit the offence at the same time”. The Court tackled the offence of conspiracy as a matter of inference to be deducted from certain criminal acts or in actions of the parties concerned.” By the decision of the Courts supra, a Court of law can infer conspiracy from the criminal acts of the parties including the evidence of the conspirators. What the Court is to look for in a case of conspiracy is the criminal acts of the conspirators which involves prior agreement. See Ikwunne vs The State (2000) 5 NWLR Pt. 658 P. 550 @ 560 and Osondu vs FRN (2000) 12 NWLR Pt. 682 P. 483 @ 501-502. PER IBRAHIM SHATA BDLIYA, J.C.A.

INGREDIENTS THAT MUST BE ESTABLISHED TO PROVE THE COMMISSION OF THE OFFENCE OF ARMED ROBBERY, UNDER SECTION 1(2) OF THE ARMED ROBBERY AND FIREARM ACT, 2004

To prove the commission of the offence of armed robbery, under Section 1(2) of the Armed Robbery and Firearm Act, 2004, what must be established have been set out in the case of Agugua vs The State (2017) All FWLR Pt. 888 P.355 @ 359, thus: “for the prosecution to achieve success in proof of the offence of armed robbery, the following essential ingredients must be proved beyond reasonable doubt: a. That there was a robbery incident or series or robberies; b. That the robbery or each of the robberies was an armed robbery; and c. That the accused was armed robber or one of the armed robbers.” PER IBRAHIM SHATA BDLIYA, J.C.A.

MEANING AND NATURE OF A PERVERSE DECISION OR FINDING

A perverse decision or finding is an unreliable and unacceptable finding because it is wrong and completely outside the evidence before the trial Court. When a trial Court fails to rely on the evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. See John Bhoy Int. Ltd vs. AEPB (2013) 8 NWLR Pt. 1357 P. 625 @ 640; Yaro v. Arewa Const. Ltd (2007) 17 NWLR Pt. 1063 P. 333; Adimora v. Ajufo (1988) 3 NWLR Pt. 80 P. 1 and Anyakora v. Obiakor (2005) 5 NWLR Pt. 918 P. 507. In Olaniyan v. Fatoki (2013) 17 NWLR Pt. 1384 P. 477 at 492. A perverse decision or finding of fact or decision is said to be perverse when it runs counter to the facts and evidence on record, or where the Court whose finding or decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious, and by its very nature the finding or decision has occasioned a miscarriage of justice. See Adimora v. Ajufo (1988) 3 NWLR Pt. 80 P.1; Yaro v. Arewa Construction Ltd. (2007) 17 NWLR Pt.1063 P. 333. In Nikagbatse v. Opuye (2010) 14 NWLR Pt. 1213 P. 50 @ 86, it has been enunciated that a decision is said to be perverse when it fails to take into cognizance the facts or evidence led before the Court. In other words, a decision is perverse where the Court arrived at such a decision by taking into account matters which it ought not to have taken into account or where the Court shuts its eyes to the obvious, thereby, persisting in error, different from what is reasonable or required. See Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 360; Egba v. Appah (2005) 10 NWLR Pt. 934 P. 464; Lagga v. Sarhuna (2008) 16 NWLR Pt. 1114 P.427. A perverse decision of a Court arises in so many ways, such as when the Court; (a) Ignored the facts or evidence; or (b) Misconceived the thrust of the case presented; or (c) took irrelevant matters into account which substantially formed the basis of its decision; (d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or (e) Committed various errors that faulted the case beyond redemption. See F. K. Construction Ltd v. NDIC (2013) 13 NWLR Pt. 1371 P. 390 @ 421. In determining whether a decision or finding of facts by a Court is perverse or not, certain factors are to be given due consideration as enumerated in the case of Ojeleye v. Reg. T.O.J.M.C & SCN (2008) 15 NWLR Pt. 1111 P.520 @ 534-535, which are:.(a) Facts on the basis of which the respondent based its claim; (b) Challenge given to those facts by the appellant; and (c) Trial Court’s assessment of the facts of both sides and its eventual conclusions. If the Court’s decision does not flow from the facts and the evidence before it, or the reasons advanced for the decision are untenable, even where the issue revolves around the credibility of the witnesses whom the trial Court had the privilege of seeing, an appellate Court will interfere, make appropriate findings, evaluate the evidences, and arrived at a just and correct decision in the interest of justice. The appellant has not been able to show or establish that the decision arrived at by the learned judge of the lower Court is perverse. There is therefore no basis to interfere with same. PER IBRAHIM SHATA BDLIYA, J.C.A.

CIRCUMSTANCE WHEN AN APPELLATE COURT WILL INTERFERE WITH A FINDING AND/OR DECISION OF A TRIAL COURT

The law is trite, an appellate Court is not to interfere or disturb a finding and/or decision of a trial Court, unless there exist good reasons to do so, for instance, where the finding or decision is perverse, that is, cannot be supported having regard to the evidence before the trial Court. The onus of proving that a finding and/or decision of a trial Court is perverse is on the party alleging so. There is presumption in law that the finding and/or a decision of a trial Court is right, unless proved otherwise. See Mainagger vs Gwamma (2004) 12 M.J.S.C. P. 34; Ogunbiyi vs Adewunmi (1989) 5 NWLR Pt. 98 P. 217; Akeredolu vs Akinremi (1989) 3 NWLR Pt. 108 P. 164; Ibodo v. Enarofia (1980) 5 – 7 SC 42 and Eholor vs Osayande (1992) 6 NWLR Pt. 249 P. 524. PER IBRAHIM SHATA BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court, Ilorin (herein refers to as the lower Court) in charge No: KWS/7C/2017, delivered on the 13th day of August, 2020, by A. S. Oyinloye, J. The appellant (and one other person) were arraigned on a three counts charge before the lower Court for allegedly committing the offences of conspiracy under Section 97 of Penal Code and Armed Robbery under Sections 1(2) and 6(5) respectively, of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004. Each of them pleaded not guilty to each of the charge. The prosecution called witnesses, who testified and tendered Exhibits to prove the commission of the offences by the appellant. The appellant testified and tendered Exhibits in his defence. Written addresses were filed and adopted by learned Counsel. The learned judge of the lower Court, in a well-considered judgment delivered on the 13th day of August, 2020, convicted the appellant and one other, on the 2nd and 3rd counts of the charge, and sentenced them accordingly.

Dissatisfied with the conviction and the sentencing, the appellant filed a Notice of appeal on the 28th of October, 2020, challenging his conviction and sentencing for committing the offences with which he was charged and arraigned. The appellant’s brief of argument was filed on the 11th day of December, 2020, wherein two(2) issues for determination of the appeal were culled out of the grounds of appeal which are contained on page 4 thereof. The respondent’s brief of argument was filed on 21st day of January, 2021, wherein the two(2) issues for determination contained in the appellant’s brief of argument were adopted, whole-sale. A Reply brief was filed by the appellant on the 28th day of January, 2021.

The 2 issues for determination in the appeal contained in the appellant’s and the respondent’s brief of argument as thus:
I. “Whether from the gamut of the evidence adduced at the trial Court, the learned trial judge was right to have convicted and sentenced the Appellant for the offence of Criminal Conspiracy and Armed Robbery and whether the conviction and sentence has not occasioned a miscarriage of justice. (Grounds 2 and 4).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“Whether from the totality of the admissible evidence before the trial Court, the prosecution proved her case beyond reasonable doubt upon which the learned trial judge convicted and sentenced the Appellant for the offences of Criminal Conspiracy and Armed Robbery particularly on the failure to conduct an identification parade to ascertain the identity of the Appellant.” (Grounds 1 and 3).RESOLUTION OF ISSUES
ISSUE ONE (1)
Whether, having regard to the totality of the evidence adduced by the prosecution before the lower Court, the learned judge was not right when he convicted and sentencing the appellant under Section 97 of the Penal Code and Section 1 (2) and 6 (5) of the Armed Robbery and Firearms Act, 2004 (amended) for committing the offences of conspiracy and armed robbery, therefore occasioning a miscarriage of justice?

Abiodun Dada Esq., of learned counsel, who settled the appellant’s brief of argument made elaborate and extensive submission’s on pages 6 to 15 thereof, citing and relying on a plethora of decided cases of the Apex Court and the Court of Appeal to buttress same, and did urge that issue

1 be resolved in favour of the appellant. Specifically, learned counsel did contend that by the principles of law espoused in the cases of Friday vs The State (2017) All FWLR Pt. 885 P.1814 @ 1816; Akwuobi vs The State (2017) All FWLR Pt. 893 P.1169 @ 1172; Adeleke vs The State (2017) All FWLR Pt. 878 P.519 @ 522; Bande vs The State (2017) All FWLR Pt. 908 P.1878 @ 1880, amongst others, the evidence adduced by the respondent, have not established the commission of the offences under Section 96 of the Penal Code and Section 1 (2) and 6 (5) of the Armed Robbery and Firearms Act, 2004 (amended) with which the appellant was charged and tried before the lower Court.

Learned counsel further submitted that, had the learned judge of the lower Court evaluated the evidence adduced before the Court, he would have arrived at a deferent decision. That, having not properly evaluated the evidences, the decision arrived at is perverse occasioning a miscarriage of justice to the appellant. The principles of law as espoused in the case of Abdulmumini vs FRN (2018) All FWLR Pt. 969 P. 774 @ 779 was cited and relied on. This Court has been urged to evaluate the evidence

adduced at the trial Court and arrive at a just decision. In conclusion, learned counsel urged the Court to resolve issue 1 in favour of the appellant.

Yusuf Olatayo Mufutau Esq., of the learned counsel to the respondent, made extensive and elaborate submissions on pages 3 to 14 of the brief of argument, citing and relying on a litany of decisions of the Apex Court, and the Court of Appeal to buttress the points made and contended that, the learned judge of the lower Court was right when he convicted and sentenced the appellant, having committed the offences with which he was arraigned, having regard to the evidence adduced by the prosecution. Specially, learned counsel adumbrated that for the prosecution to sustain a charge of criminal conspiracy under Section 97 of the Penal Code, the following elements must be established by credible evidence:
(i) An agreement between 2 or more persons to do an illegal act by illegal means or a legal act by illegal means
(ii) That some acts, beside the agreement, was done by one or more of the conspirators in furtherance of the agreement.
(iii) That each of the conspirators collectively or individually

participated in the said act(s).

The following cases were been cited and relied on The State vs Salawu (2012) All FWLR Pt. 614 P.1 @ 29; Adekunle vs The State (1989) 12 SCNJ P. 184 and Nwosu vs The State (2009) All FWLR Pt. 218 P. 916.

It is learned counsel’s further submissions that the offence of conspiracy may not always be proved by direct evidence, rather it could be inferenced from acts of the conspirators as espoused in the cases of Onyenye vs The State (2012) All FWLR Pt. 643 P. 1810 @ 1823; Kolawole vs The State (2015) 1 SCM P. 199 @ 212 and Ogogovie vs The State (2016) All FWLR Pt. 847 P. 425 @ 447.

It is learned counsel’s further contention that the evidence of Pws 2, 3, 4 and 5 when considered side by side with Exhibit P5, the confessional statement of the appellant, the commission of the offence of conspiracy had been established by the prosecution at the trial before the lower Court. Learned counsel pointed out that the confessional statement of the appellant, though retracted has been sufficiently collaborated by the evidence of the P.W 1, 2, 3, 4 and 5 rendering it credible, and the lower Court was justified in

relying on same to convict the appellant for committing the offence of conspiracy and sentenced him accordingly. The principles of law propounded in the cases of Alarape vs The State (2017) 6 SCM P. 1 @ 3; Solola vs The State (2005) All FWLR Pt. 269 P. 1752 @ 1782; Okeke vs The State (2003) 5 SCM 131 @ 189 and Adebayo vs The State were cited and relied on to reinforce the submissions supra.

On the alleged failure of the learned judge of the lower Court to evaluate and ascribe probative value to the evidence of the appellant and the respondent at the trial Court, learned counsel did contend that the learned judge properly evaluated the evidence and ascribed probative value thereto, preferring the evidence of the prosecution being more credible and cogent before arriving at the decision to convict the appellant, having established the commission of the offence of conspiracy by the appellant. Concluding, learned counsel submitted that the learned judge of the lower Court properly evaluated the evidence before him in arriving at the decision that the offence of criminal conspiracy was committed by the appellant and others. The principle of law enunciated in

the case of King vs The State (2016) 11 SCM 89 @ 120-121 was cited and relied on to buttress the adumbration supra. This Court was therefore urged to find and hold that the evidence adduced by the prosecution at the trial, proved the conviction of the offence of conspiracy by the appellant and should so hold, and resolve issue 1 against the appellant.

The grouse of the appellant against the conviction by the lower Court for committing the offences of conspiracy and armed robbery, is that the prosecution did not adduce credible evidence linking him with the commission of the said offences. The learned judge of the lower Court, in his judgment delivered on the 13th day of August, 2020, after considering the evidence adduced by the prosecution, found and held as recorded on pages 101 to 102 of the printed record of appeal thus:
“In view of the earlier conclusion that the offence of armed robbery was proved in this matter, the Court infers that there was meeting of minds between the accused persons to commit the said armed robbery and as such, the crime of conspiracy was also consummated in the process. The Court came to the foregoing position

because in law, the Court is permitted to raise a presumption from the proof of some other facts the existence of another fact without the need for further proof of that other facts. The rule is so because the possibility of proving a matter charged by direct and positive testimonies of eye witness or by conclusive documents is much rarer in criminal matters than in Civil cases/proceedings. See Brown v. State (2005) 31 W.R.N. 135 at 165 and Ijioffor .v. State (2001) 9 N.W.L.R. (Pt. 718) 371 at 384.
I therefore, hold that by the clear inference this Court is permitted to draw in this matter, the offence of criminal conspiracy was consummated by the Accused persons and they are guilty of same as charged.”

Was the learned judge of the lower Court right in arriving at the decision supra? Section 96 (1) and (2) of the Penal Code Kwara State provides as follows:
(1) “When two or more persons agree to do or cause to be done
(a) an illegal act; or
(b) an act which is not illegal by illegal means,
such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of Subsection (1), no agreement

except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
The offence of conspiracy has been defined in the case of Bande vs The State (2017) All FWLR Pt. 908 P.1878 @1880, thus:
“Conspiracy is an offence that is often deduced or inferred from the acts of the parties thereto, which are directed towards the realization of their common or mutual purpose or agreement. Conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful punishable if for a criminal object or for the use of criminal means. While conspiracy in the penal code has been defined as agreement by two or more persons to do or caused to be done:
a. An illegal act, or
b. An act which is not

illegal by illegal; means
Thus, there can be no conspiracy unless at least two persons conspired.”

circumstances. The trial Court may infer conspiracy from the fact of doing things toward a common purpose. In the instant case, where the prosecution failed to establish a conspiracy among the Accused, they were wrongly convicted for.”
In order to prove the commission of the offence of criminal conspiracy, the following ingredients must be proved by cogent evidence:
“(a) There must be consent of two or more persons.
(b) There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly i.e. mens rea.
(c) The secret intention must have been translated into an overt act or omission or mutual consultation and agreement i.e actus reus.”
See Adeleke vs The State (2017) All FWLR Pt. 878 P.519 @ 522.

The difficulty in proving the offence of conspiracy has been espoused in the case of Ogogovie vs The State (2016) All FWLR Pt. 847 P. 425 @ 447, thus:
“However, one is mindful that the secrecy with which criminals perpetrate their crimes or even the meeting of minds has tended to create difficulties for the prosecution in many cases of no eye witness and so confession in such situations alone without corroboration may suffice to support conviction as the Court is satisfied of the truth of such a confession. The other area of solution can be by deduction from the inference from the act of the parties in such inferences.”
In Onyenye vs The State (2012) All FWLR Pt. 643 P. 1810 @ 1823, the Apex Court enunciated that:
“Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not to know themselves and not to have agreed to commit the offence at the same time”.
The Court tackled the offence of conspiracy as a matter of inference to be deducted from certain criminal acts or in actions of the parties concerned.”

By the decision of the Courts supra, a Court of law can infer conspiracy from the criminal acts of the parties including the evidence of the conspirators. What the Court is to look for in a case of conspiracy is the criminal acts of the conspirators which involves prior agreement. See Ikwunne vs The State (2000) 5 NWLR Pt. 658 P. 550 @ 560 and Osondu vs FRN (2000) 12 NWLR Pt. 682 P. 483 @ 501-502. The evidence of pw2, Mustapha Hawau, the victim of the robbery is pertinent on the way and manner the appellant and others robbed her. The evidence of pw3, 4 and 5 as well as Exhibit 5, the confessional statement of the appellant, are all basis from which an inference could be drawn from that the appellant was one of the robbers that went to the house of the pw2 and robbed her. Exhibit p2 which the appellant snatched from the pw2 at the scene of the robbery was found with the appellant is also relevant to the inference that could be drawn by a Court of law in taking a decision on who robbed the pw2. A communical examination of the evidence pw2, 3, 4, 5 and Exhibit p5 leads to the conclusion that the appellant and others robbed pw2.

The finding and decision arrived at by the learned judge of the lower Court recorded on page 102 of the record of proceeding cannot therefore be faulted. The learned judge of the lower Court held as follows:
“I therefore hold that by the clear inference, this Court is permitted to draw in this matter, the offence of criminal conspiracy was consummated by the Accused persons and they are guilty of same as charged.”

The evidence of pw4, the vigilante officer, pw5 and Exhibit p5 reinforce the decision arrived at by the learned judge of the lower Court that the appellant and one other conspired and robbed pw2 on the 10th of September, 2016. In Exhibit p5, the appellant volunteered his statement which was recorded as follows:
“…On Saturday, being 10/9/2016 at about 20.30hrs, I and other people namely as follows: Shafi and Ibrahim (2nd accused) whom I know through Shafi, all of Offa Local Government Area of Kwara State. All went to the complainant’s house at Qureeb Village, Offa and on getting there, we all waiting for whom to come home until one woman and her children opened the gate and entered to the compound, then all of

us followed her to her apartment where one Emmanuel came in with the gun. In that process, the woman surrender her bag to the said Emmanuel and I heard a gun shot inside the premises shot by the said Ibrahim Mustapha (1st Accused) after that gun shot, I jumped through the fence.”

The confessional statement Exhibit p5, which is direct and positive was rightly relied on by the learned judge of the lower Court when he convicted the appellant under Section 97 of the Penal Code for committing the offence of conspiracy. In determining whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a litany of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1980) 8-11 SC Page 236 at 267; Obaseki, JSC (of blessed memory) had this to say on pages 267 – 268:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14

WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist.
If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu v. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessions statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line

of authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi vs. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors vs The State (1966) 2 SC 141 (5) JimohYesufu vs. The State (1976) 6 SC 167 (6) Ebhomien & Ors vs. The State (1963) 1 All NR 365.”

Exhibits P5, the statement of the appellant as found by the lower Court passed or satisfied all the requirements enumerated supra. The learned trial Judge of the lower Court was perfectly right when he relied on Exhibit P5 in arriving at the decision that the appellant committed the offence of conspiracy robbery under Section 97 of the Penal Code of Kwara State and convicted him accordingly.

In view of the foregoing adumbration, I am in agreement with the learned judge of the lower Court, when he held in the judgment delivered on the 13th of August, 2020, which was been recorded on page 102 of the printed record of proceeding that:
I therefore, hold that by the clear inference this Court is permitted to draw in this matter, the offence of criminal conspiracy was consummated by the Accused persons and they are guilty of same as charged.

Learned counsel to the appellant did contend that the prosecution did not adduce credible evidence to establish the commission of the offences of armed robbery by the appellant. To prove the commission of the offence of armed robbery, under Section 1(2) of the Armed Robbery and Firearm Act, 2004, what must be established have been set out in the case of Agugua vs The State (2017) All FWLR Pt. 888 P.355 @ 359, thus:
“for the prosecution to achieve success in proof of the offence of armed robbery, the following essential ingredients must be proved beyond reasonable doubt:
a. That there was a robbery incident or series or robberies;
b. That the robbery or each of the robberies was an armed robbery; and
c. That the accused was armed robber or one of the armed robbers.”

The evidence of pw2 Mustapha Hawau, the victim of the offence, is germane. Part of the testimony of the witness as recorded on page 22 of the record of proceeding are reproduced hereunder:
“On 10/9/2016, we left our shop going home, as we got home that night, we parked the car in front of our gate with a little child living with us. That night, my husband saw some people

around with light because it was festive period, he then alighted from the car went to greet them. We were still inside the vehicle. When he did not return on time, we alighted from the car and went inside and locked the gate back. We opened persons followed us in. We could not switched on the light then, they enquired from us about the money we brought from shop and I told them no money they threatened to either shoot me or the baby I backed. As we were arguing, my husband knocked that we should open the gate for him. The accused person prevented us from going out but ordered the little child with us to go and open the gate for my husband but should not tell him what was going on.”

The evidence of pw2 has been corroborated by the evidence of pw3, 4, 5 and Exhibit p5, the statement made by the appellant. The evidence of pw2 also shows that the appellant was armed with a gun. There is the evidence of pw4 that he recovered a locally made pistol from the appellant, which is Exhibit P2. The appellant made a confessional statement to pw5, which was admitted in evidence as Exhibit p5. In Exhibit p5, the appellant stated as follows:

“…On Saturday, being 10/9/2016 at about 20.30hrs, I and other people namely as follows: Shafi and Ibrahim (2nd accused) whom I know through shafi, all of Offa Local Government Area of Kwara State. All went to the complainant’s house at Qureeb Village, Offa and on getting there, we all waiting for whom to come home until one woman and her children opened the gate and entered to the compound, then all of us followed her to her apartment where one Emmanuel came in with the gun. In that process, the woman surrender her bag to the said Emmanuel and I heard a gun shot inside the premises shot by the said Ibrahim Mustapha (1st Accused) after that gun shot, I jumped through the fence.” (Underlining mine for Emphasis)

The learned judge of the lower Court found and held as follows as recorded on page 87 of the record of proceedings:
“I have disappointedly considered the materials before the Court and I found nothing to the contrary that the armed robbery event took place and same involved PW2 as the victim in the circumstances of this case.”

The evidence of pw2, 3, 4, 5 and Exhibit p5 clearly established that there was armed robbery

which took place on the 10th of September, 2016. The armed robbers were in possession of gun and locally made pistol. The appellant was one of the armed robbers. Exhibit p5, the confessional statement made by the appellant is of evidential value as held in Adebayo vs The State (2014) 8 SCN 34 @ 60-61. The Apex Court held thus:
“Evidential value of a confession truth is very great indeed, it is very much sought after by the police investigators and the prosecutors. It lightens the burden of prosecuting by dispensing with the needs to call a host of witnesses. A confession can support a conviction if proved to be made and true.”
Where a confessional statement is cogent, reliable and having satisfied all the conditionalities enumerated in the case of Dawa v. State (1980) 14 SC P. 236 @ 267 and Akpa v. State (2008) 14 NWLR Pt. 1106 P. 2, conviction of an accused person can be justified notwithstanding the absence of corroborative evidence. See Nwachukwu v. State (2007) 17 NWLR Pt. 1062 P. 65, wherein it was held that:
“a confessional statement is the best evidence in criminal proceedings, it is a statement of admission of guilt by the accused person.”

In Nwachukwu v. State (2007) supra, the Court went on to hold that:
“even without those corroborative acts, the appellant could perfectly be convicted solely on his voluntary confessional statement.”
Exhibit P5 having satisfied the tests or conditions set out in Dawa v. State (1980) 11 SC P. 236 @ 267, is cogent, reliable and unequivocal, an accused person can be convicted on same, even if no other evidence has been adduced by the prosecution. See Emeka v. State (2001) 5 MJSC P. 62.
The evidence of pw2, pw3, pw4, pw5 and Exhibit p5 and p2 and p4 are cogent, compelling and unequivocal, which the learned judge of the lower Court relied on to convict the appellant for committing the offence of criminal conspiracy under Section 97 of Penal Code and Armed Robbery under Section 1(2) of the Armed Robbery and Firearm Act, 2004. I totally agree with the learned judge of the lower Court when he held as recorded on pages 98 – 99 of the record of proceedings, thus:
“I have carefully examined the evidence on record, and I found evidence of PW2 and PW4 on the point convincing and I have not seen

anything on record to doubt them on the issue of recovery of the bag (Exhibit P2) from the Accused persons, I reject the mere general denial of the Accused persons and the inescapable conclusion of the Court from the foregone is that the immediate possession and recovery of Exhibit P2 from the Accused persons so soon after the robbery incident raised a strong reputable presumption which has not been displaced in this matter that the Accused persons were the robbery attackers.”

In view of the foregoing adumbration, I agree with the judgment of the lower Court delivered on the 13th of August, 2020, wherein the appellant was convicted and sentenced to death for committing the offences of conspiracy under Section 97 of Penal Code and Armed Robbery under Section 1 (2) of the Armed Robbery and Firearms Act, 2004.

Learned counsel to the appellant did contend that the conviction and sentence imposed on the appellant in perverse occasioning a miscarriage of justice. What is a perverse decision in the adjudication process? A perverse decision or finding is an unreliable and unacceptable finding because it is wrong and completely outside the evidence

before the trial Court. When a trial Court fails to rely on the evidence before it to make findings which are inconsistent with the evidence, such finding is perverse. See John Bhoy Int. Ltd vs. AEPB (2013) 8 NWLR Pt. 1357 P. 625 @ 640; Yaro v. Arewa Const. Ltd (2007) 17 NWLR Pt. 1063 P. 333; Adimora v. Ajufo (1988) 3 NWLR Pt. 80 P. 1 and Anyakora v. Obiakor (2005) 5 NWLR Pt. 918 P. 507. In Olaniyan v. Fatoki (2013) 17 NWLR Pt. 1384 P. 477 at 492. A perverse decision or finding of fact or decision is said to be perverse when it runs counter to the facts and evidence on record, or where the Court whose finding or decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious, and by its very nature the finding or decision has occasioned a miscarriage of justice. See Adimora v. Ajufo (1988) 3 NWLR Pt. 80 P.1; Yaro v. Arewa Construction Ltd. (2007) 17 NWLR Pt.1063 P. 333.
In Nikagbatse v. Opuye (2010) 14 NWLR Pt. 1213 P. 50 @ 86, it has been enunciated that a decision is said to be perverse when it fails to take into cognizance the facts or evidence led before the Court.

In other words, a decision is perverse where the Court arrived at such a decision by taking into account matters which it ought not to have taken into account or where the Court shuts its eyes to the obvious, thereby, persisting in error, different from what is reasonable or required. See Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 360; Egba v. Appah (2005) 10 NWLR Pt. 934 P. 464; Lagga v. Sarhuna (2008) 16 NWLR Pt. 1114 P.427.
A perverse decision of a Court arises in so many ways, such as when the Court;
(a) Ignored the facts or evidence; or
(b) Misconceived the thrust of the case presented; or
(c) took irrelevant matters into account which substantially formed the basis of its decision;
(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or
(e) Committed various errors that faulted the case beyond redemption. See F. K. Construction Ltd v. NDIC (2013) 13 NWLR Pt. 1371 P. 390 @ 421.
In determining whether a decision or finding of facts by a Court is perverse or not, certain factors are to be given due consideration as enumerated in the case of Ojeleye v. Reg. T.O.J.M.C & SCN

(2008) 15 NWLR Pt. 1111 P.520 @ 534-535, which are:
(a) Facts on the basis of which the respondent based its claim;
(b) Challenge given to those facts by the appellant; and
(c) Trial Court’s assessment of the facts of both sides and its eventual conclusions.

If the Court’s decision does not flow from the facts and the evidence before it, or the reasons advanced for the decision are untenable, even where the issue revolves around the credibility of the witnesses whom the trial Court had the privilege of seeing, an appellate Court will interfere, make appropriate findings, evaluate the evidences, and arrived at a just and correct decision in the interest of justice. The appellant has not been able to show or establish that the decision arrived at by the learned judge of the lower Court is perverse. There is therefore no basis to interfere with same.
The learned judge of the lower Court evaluated the evidence adduced before him and made findings before arriving at the decision on pages 44 and 45 of the record of proceeding. The law is trite, an appellate Court is not to interfere or disturb a finding and/or decision of a trial

Court, unless there exist good reasons to do so, for instance, where the finding or decision is perverse, that is, cannot be supported having regard to the evidence before the trial Court. The onus of proving that a finding and/or decision of a trial Court is perverse is on the party alleging so. There is presumption in law that the finding and/or a decision of a trial Court is right, unless proved otherwise. See Mainagger vs Gwamma (2004) 12 M.J.S.C. P. 34; Ogunbiyi vs Adewunmi (1989) 5 NWLR Pt. 98 P. 217; Akeredolu vs Akinremi (1989) 3 NWLR Pt. 108 P. 164; Ibodo v. Enarofia (1980) 5 – 7 SC 42 and Eholor vs Osayande (1992) 6 NWLR Pt. 249 P. 524.
The findings and decisions of the lower Court on pages 44 and 45 of the record of proceedings were based on established facts arrived at after the evaluation and ascription of probative value to the evidence adduced before the lower Court (the trial Court). This Court, being an appellate Court, cannot interfere or disturb the findings of the lower Court. The appellant has not shown or proved that the findings and/or decision’s of the lower Court are perverse, therefore a miscarriage of justice has not been occasioned.

Is there a miscarriage of justice where the decision of the Court is not perverse. What is the meaning of miscarriage of justice or when does it occurs. The Apex Court, in the case of Abubakar v. Nasamu (No.2) (2012) 17 NWLR Pt. 1330 P. 523 @ 588, enunciated that the expression, miscarriage of justice, varies from one case to the other. The facts and circumstances of the case must be examined. It could mean failure of the Court to do justice, or justice misapplied. Put in another way, it is failure of justice. In effect, there is miscarriage of justice if the order of the Court is prejudicial or inconsistent with the right of a party. In Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) P. 332 @ 372, the Apex Court said that Miscarriage of justice occurs when in the course of a proceeding, the goal post is shifted to the determent of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party, thus jeopardizing the equal right of the other party.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Again, in Oke vs. Mimiko (No. 2) supra page 372, the Apex adumbrated that miscarriage of justice can be said to be such departure from the rules which permeates all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice varies, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law. See Aigbobahi v. Aifuwa (2006) 6 NWLR Pt.976 P.270. This Court, in Ediru v. FRSC (2016) 4 NWLR Pt.1502 P.209 @ 246, espoused the meaning and purport of miscarriage of justice in these words:
“The appellant reasoned that the non-resolution of those issues precipitated a miscarriage of justice on him. A miscarriage of justice, in the eyes of the law, is such a departure from the rules which pervade all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. See Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It implies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the

substantiated rights of a party. It means a reasonable probability of a more favourable result of the case for the party alleging it. it is a failure of justice. See Larmie v. DPM & Services Ltd (2006) All FWLR (Pt. 296) 775, (2005) 18 NWLR (Pt.958) 438; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282.”

Having found and held that the evidence adduced by the prosecution before the lower Court established the commission of the offences of criminal conspiracy punishable under Section 97 of Penal Code and Armed Robbery under Section 1 (2) and 6(5) of the Armed Robbery and Firearms Act, 2004, being not perverse decision, therefore, no miscarriage of justice had been occasioned to the appellant.

At the trial before the lower Court, the appellant gave evidence. The appellant raised the defence of “alibi” (that he could not have been at scene of the crime) but elsewhere, at the Federal Polytechnic Offa on the 10th day of September, 2016. That he went to the Polytechnic to see his supervisor who is a lecturer. He narrated how he was stopped and interrogated by the vigilante group who questioned him on where he was coming from and to

where he was going. His evidence in part are thus as contained on page 51 of the printed record of proceedings of the lower Court:
“On September 10th, 2016 around 7.45p.m., it was serving right at Offa and it was 2 days before Ileya festival. I received a call from my Group Leader (Supervisor) who was in charge of my project and he informed me that my project is ready and I should come and pick it up because he would be travelling only ones left in school. He directed me to his address which was located by the motor bike man (Okada) that I took at Pan Avenue Olorunkuse Area, Offa. On getting to the street, I called him and he directed me. He came out with my project and gave me a polybag Nylon to cover it up because of the rain. We exchanged greetings and he saw me back to the junction where I would take motor bike. We waited at the junction and there was no bike man, he told me to move forward that may be I could see a bike man. I got to a filling station and saw a bike man coming out of the filing station. I stopped him and negotiated the fee. On my way home with the bike man, we got to the front of the house of Mr. Adesoye, we were stopped by the

vigilante group. A torch light was used to beam light on my face and I was asked where I was coming from. I told them I was coming from where I went to collect my project and that I was a student of Federal Polytechnic, Offa.”

Learned counsel to the respondent did submit that the defence of “alibi” cannot be available to the appellant having not raised same at the earliest time, that is, when making his statement (Exhibit p5) before his trial at the lower Court.

“Alibi” in Latin simply means “elsewhere.” This is “1. A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in location other than at the scene of the crime at the relevant time…” Secondly, it is “2. The fact or state of having been elsewhere when an offense was committed.” See Black’s Law Dictionary, 9th edition, page 84. The earliest opportunity of raising a plea of alibi is at the time the suspect was arrested and arraignment before the Court. This is to afford the police the opportunity to verify the location the suspect claimed to have visited at the time of the alleged

commission of the offence so as to show the probability or impossibility of the suspect being at the scene of crime at the time of its commission. Alternatively, it is to show that there is no credible evidence to support the plea of alibi. The usual practice is for the suspect to name the person or persons they were with at that location, the date or hours, etc, so that the police would interview or interrogate them to see if there is credibility in the plea of alibi or not. But where there is cogent, sufficient and accepted evidence fixing the suspect at the trial, the alibi is said to have been discredited or demolished. See Njovens vs State (1973) 5 SC17 at 65; Esangbedo vs. State (1989) 7 SCNJ 10 and Odidika vs. State (1977) 2 SC 21. This is more so where suspect was apprehended at the scene actively participating in the crime.
Alibi as a defence would be ignored if the suspects did not raise it timeously upon his arrest but waited till his defence. Beside, a defence witness cannot raise the plea for a suspect. See Ntanu vs. The State (1968) NMLR 86; Oloyede vs. The State (1975) NMLR 331 and Adedeji vs. The State (1971) 1 All NLR 75 at 79. But where a

suspect was not arrested at the scene of the crime and the accused pleaded alibi, an identification parade should be held by the police. See Alabi vs. State (1993) 9 SCNJ (Pt. 1) 109 at 122 and Ikone vs. The state (1973) 5 SC 231 and Ikemson vs. State (1989) 3 NWLR (Pt.2) 455. Where the suspect pleads alibi particulars of his location and the witnesses to be interrogated by the police is his responsibility. See Nwosisi vs. The State (1976) SC 109 and Ukwunnenyi vs. State (1989) 7 SCNJ 34 at 43. It is within the province of a learned trial Judge to believe the prosecution’s evidence rather than the suspect’s plea of alibi.

I agree with the submission of learned counsel to the respondent that having not raised the defence of alibi at the earliest opportunity, same cannot be available to him, later when he was giving evidence at the trial before the lower Court. In the end result, I resolve issue 1 against the appellant.

ISSUE TWO (2)
“Whether from the totality of the admissible evidence before the trial Court, the prosecution proved her case beyond reasonable doubt upon which the learned trial judge convicted and sentenced the Appellant

for the offences of Criminal Conspiracy and Armed Robbery particularly on the failure to conduct an identification parade to ascertain the identity of the Appellant?

Learned counsel to the appellant, Abiodun Dada Esq., made extensive and elaborated submission on pages 15 to 27 of the brief of argument citing and relying on a litany of authorities to buttress his contention that the identity of the appellant as one of the robbers was not proved because the prosecution did not conduct an identification parade as required by law. It was further contended that the onus of proving the commission of the offences of conspiracy and armed robbery by the appellant squarely lied on the prosecution. The principles of law espoused in Akinrinsola vs The State (2017) All FWLR Pt.877 P. 206 @ 2112 was relied on to reinforce the submission supra.

On the desirability of conducting an identification parade, where an accused person has not been arrested at the scene of the crime, as in the extant case, learned counsel did submit that the conviction of the appellant by the lower Court, cannot be sustained, because in such a situation, the prosecution failed to prove the

commission of the offence against the appellant beyond reasonable doubt. The principles of law enunciated in the cases of Famuyiwa vs The State (2018) All FWLR Pt. 919 P.1 @ 5; Kwame Wisdom vs The State (2017) 14 NWLR Pt. 1586 P. 446 @ 449; Edoho vs The State (2003) All FWLR pt. 173 P. 29 @ 36; Eyisi vs The State (2001) All FWLR Pt. 35 P. 750 @ 759 and Ndidi vs The State (2007) All FWLR Pt. 381 P. 1617 @ 1670 were relied on to buttress the submissions supra.

Submitting further, learned counsel adumbrated that the evidence of the prosecution witnesses before the lower Court were contradictory and or inconsistent, such that a Court of law cannot rely on same to take a decision. As to what amounts to contradiction or inconsistency in the evidence of witnesses, learned counsel cited and relied on the principles of law propounded in the cases of Eluji Kingsley Eze vs The State (2018) 11 NWLR Pt. 1630 P. 533 @ 359; Osadolor vs The State (2017) All FWLR Pt. 895 P. 1581 @ 1592 and Bande vs The State (2017) All FWLR Pt. 908 P. 1878 @ 1884. In conclusion, learned counsel submitted that the learned judge of the lower Court erred in law when he convicted and sentenced

the appellant for committing the offences of conspiracy and armed robbery, when the prosecution failed to established all the essential ingredients of the offences and or failed to link the commission of the offence to the appellant. This Court has been urged to resolve issue 2 in favour of the appellant.

For the respondent, Yusuf Olatayo Mufutau Esq., of learned counsel, made elaborate submissions on pages 15 to 23 of the brief of argument citing and relying on a plethora of decided cases to buttress his arguments. Specifically, learned counsel pointed out that what is in contention is the issue of whether the identity of the appellant was established as required by law, in view of the failure of the prosecution to conduct an identification parade, when the appellant was not arrested at the same of the crime and none of the witnesses identified the appellant on the day the offences were allegedly committed. Learned counsel did concede that, the onus of proving, the commission of the offence was on the prosecution, but went on to contend that the evidence adduced before the lower Court where cogent and reliable which warranted the conviction and sentence imposed on the appellant by the lower Court.

On what the prosecution must prove, to secure conviction for the commission of the offence of conspiracy and armed robbery under Section 97 of the Penal Code and Section 1 (2), (5) of the Armed Robbery and Firearms Act, 2004, learned counsel did submit the that evidence of Pw3 – Pw5 and Exhibit p5, the confessional statement, proved that (i) there was armed robbery on the 16th of September, 2016, (ii) the robbers were armed with locally made pistol and gun (iii) the appellant was one of the robbers.

On the need to conduct an identification parade by the police, learned counsel submitted that, it is not in all cases that an identification parade is to be conducted by the police. That where the identity of an accused can be established by other means, the failure to conduct the parade may not be fatal to the prosecution of the case, in so far, there are cogent evidence on the identity of the accused as enunciated in the cases of Utang vs The State (2008) All FWLR Pt. 402 P.1203 @ 1237; Adisa vs The State (1991) 1 NWLR Pt. 168 P.490 @ 506. Learned counsel did urge that issue 2 be resolved against the appellant.

The main grouse or complaint of the appellant is that he was convicted and sentenced by the lower Court when the respondent (prosecution) did not prove the case against him beyond reasonable doubt in view of the failure to conduct an identification parade, having not been arrested at the scene of the commission of the alleged crime.

The appellant was arrested, tried convicted and sentenced to death for committing the offences conspiracy and of armed robbery under Section 97 and Sections (1) (2) (5) (6) the Robbery and Firearms (Special Provisions) Act. The law is trite, for an offence of armed robbery to be established the following must be proved by cogent and reliable evidence:
(a) That there was in fact a robbery incident;
(b) That the robbery was an armed robbery; and
(c) That the accused person, in particular, was the armed robber.
SeeBozin v. state (1985) 7 NWLR Pt. 8 P. 465; Alabi v. State (1993) 7 NWLR Pt. 307 P. 511; Olayibka v. State (2007) 9 NWLR Pt.1040 P. 561. See also Alufohai v. The State (2015) 3 NWLR (Pt. 445) P. 132 @ 197.

The commission of an offence can be proved by any of these means:

(i) Evidence of an eye witness
(ii) Circumstantial evidence
(iii) Confessional statement of an accused person.
See Ali v. the State (2012) 7 NWLR (Pt. 1299) P. 209 @ 242.

The appellant’s grouse is that the prosecution did not conduct an identification parade to ascertain if he was the person who robbed the victim PW2 on the 10th of September, 2016. What is an identification parade in criminal jurisprudence? In Alufohai v. State (2015) 7 NWLR (Pt. 1445) P.72 @ 191, the Apex Court defined an identification parade as generally, identification parade, otherwise known as “line-up” is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See Agboola v. State (2013) 11 NWLR (Pt. 1366) 619.
An identification parade is the evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence.

Therefore, whenever a trial Court is confronted with identification evidence, it is expected to ensure and

be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence for which he is standing trial. See Ikemson v. State (1989) 3 NWLR Pt. 110 P. 455; Agboola v. State (2013) 11 NWLR Pt. 1366 P. 619.

As to when an identification parade is necessary or not, the Apex Court in Alufohai v. State (2015) 7 NWLR (Pt. 1445) P.72 @ 138, stated that, an identification parade is only necessary when there is doubt as to the ability of a victim to recognize the suspect who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.

At this juncture, it is apt to refer to the evidence adduced by pw2, 3, 4, 5 and Exhibit p2. Pw2 was the victim of the armed robbery. She gave evidence as follows as recorded on page 27 of the record of proceedings:
“On 10/9/2016, we left our shop going home, as we got home that night, we parked

the car front of our gate with a little child living with us. That night, my husband saw some people around with light because it was festive period, he then alighted from the car went to greet them. We were still inside the vehicle. When he did not return on time, we alighted from the car and went inside and locked the gate back. We opened persons followed us in. we could not switched on the light then, they enquired from us about the money we brought from shop and I told them no money they threatened to either shoot me or the baby I backed. As we were arguing, my husband knocked that we should open the gate for him. The accused person prevented us from going out but ordered the little child with us to go and open the gate for my husband but should not tell him what was going on.”

Pw3, Mustapha Lookman gave evidence at the trial before the lower Court. This is what he said as recorded on page 30 of the record of appeal:
“My wife came out and told me the thieves had run way. I and the vigilante traced the thieves to Nawarudeen Area and we met the vigilante; they enquired about my wife and they advised me to go and take my family out

of the house because it is risky. I ran back home and I was about to enter the house I received a call from Nawarudeen Vigilante people who asked me to come very quickly to look at 2 thieves they just arrested. I and my wife got to them and saw the 2 arrested thieves. They told us to identify them, they were with the bag of my wife stolen from her. PW3 identified Exhibit P2 as his wife’s bag. We told the vigilante that the bag in the possessing of the thieves were taken to the police station. I have nothing to say again.”

Pw4 Jimoh Muideen, a vigilante officer gave evidence as recorded on page 32 of the record of appeal. He said:
“We saw these armed robbers coming. We identified them with their nears and the woman’s bag they stole. We then stopped them and searched then bag. We discovered local gun and 3 bullets. We then took them to police station. (witness identified Exhibits P2, P1 and P3).

Pw5, Felix Oluwaseun, recorded the statement of the appellant, Exhibit P5 part of the statement of the appellant are thus:
“…On Saturday, being 10/9/2016 at about 20.30hrs, I and other people namely as follows: Shafi

and Ibrahim (2nd accused) whom I know through Shafi, all of Offa Local Government Area of Kwara State. All went to the Complainant’s house at Qureeb Village, Offa and on getting there, we all waiting for whom to come home until one woman and her children opened the gate and entered to the compound, then all of us followed her to her apartment where one Emmanuel came in with the gun. In that process, the woman surrender her bag to the said Emmanuel and I heard a gun shot inside the premises shot by the said Ibrahim Mustapha (1st Accused) after that gun shot, I jumped through the fence.”

In Exhibit p5, the statement of the appellant, he narrated in detail how he, and one other robbed the victim (PW2). In such a situation, it is not necessary to conduct an identification parade to ascertain the person who did the act as he has been known. See Osuagwu v. The State (2013) 1 SCNJ P. 33 @ 55, wherein it was held that:
“Where an accused person confesses to having committed the offence for which he is charged, an identification parade is clearly unnecessary, it would amount to a waste of time to go looking for the person who committed an

offence where the person has come forth to say that he committed the offence.”
Again in Alufohai v. State (2015) 7 NWLR Pt. 1445 P.172 @ 192, the Apex Court in considering the necessity to identify an accused person held that:
“identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an accused person is in dispute. But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.”
In view of Exhibit P5 and the evidence of the victim, (PW2) (PW3) (PW4) and (PW5), the identity of the person who robbed her is no longer in doubt. There was therefore, no need for identification parade. The failure of the prosecution in conducting any identification parade is therefore not fatal to the respondent’s case at the lower Court.

The learned counsel to the appellant did contend that the prosecution did not prove the commission of the offences by

the appellant beyond reasonable doubt. What is proof beyond reasonable doubt? In Miller v. Minister of Pensions (1947) 2 All ER P. 372, proof beyond reasonable doubt, has been defined, thus:
”It is not proof to the hilt.” It does not mean proof beyond the shadow of doubt. He observed “that the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only 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.”
In Muftau Bakare v. State (1987) 1 NSCC 26, at 272, Oputa JSC stated:
“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the

administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit plausible and fanciful possibilities but, it does admit a high degree of cogency, consistent with an equally high degree of probability.

The lower Court relied on the evidence of the prosecution witnesses 2, 3, 4 and 5 which have been corroborated by the contents of Exhibit P5. The law is settled, the commission of an offence is not to be proved beyond all doubt, but an offence can be said to have been committed if there is cogent evidence proving the essential ingredients of the offence. In the case of Posu v. State (2011) 2 NWLR Pt. 1234 P. 393 @ 410 – 411, the Supreme Court per Galadima, JSC said:
“By virtue of the provision of Section 138(1) of the Evidence Act the prosecution must prove the ingredients of an offence beyond reasonable doubt to secure a conviction. Therefore, if on the entire evidence adduced before a trial Court, the Court is left with no doubt the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is the

credible evidence of a single witness. On the other hand, where the Court considers the totality of the evidence and 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 the doubt resulting in his discharge and acquittal. See Afolalu vs The State (2009) 3 NWLR Pt.1127 P. 160; Fatoyinbo vs A. G Western Nigeria (1966) 1 SCNLR 101; Alonge vs IGP (1959) SCNLR P.516 and The State v. DanJuma (1997) 5 NWLR Pt. 506 P. 512.
Mohammad JSC (as he then was) expressed same view in the case of Afolalu v. State (2010) All FWLR (Pt. 528) P.812 when he 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 the trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld, even if it is ion credible evidence of a

single witness as happened in the case at hand. 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 benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector General of Police (1959) SCNLRI 516; Fatoyinbo v. Attorney – General, Western Nigeria (166) WNLR 4 and State v. Danjuma (1997) 5 NWLR (506) 512”

The evidence of pw2, Pw3, Pw4, Pw5, taken together with Exhibit P5, the confessional statement of the appellant, the commission of the offences with which the appellant was arraigned before the lower Court has been proved beyond reasonable doubt.

Having resolved the 2 issues for determination in this appeal against the appellant, the appeal fails in ‘toto’. Same is accordingly dismissed. The judgment of the lower Court, in charge No Kws/7c/2017, delivered on the 13th of August, 2020, is hereby affirmed. The conviction and sentence of the appellant by the lower Court are also affirmed.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. I agree with his reasoning however, I will make my comments on the Appellant’s defence of Alibi.

A Court is under a duty to consider any defence open to an Accused Person or raised by an Accused Person before convicting on any particular Charge. See LADO VS. THE STATE (1999) 9 NWLR PT. 619 PG. 369; ULUEBEKA VS. THE STATE (2000) 4 SC PT. 1, PG. 203; OFORLETE VS. THE STATE (2000) 7 SC PT. 1, PG. 80.

The word “Alibi” is a latin expression which means “I was elsewhere”. Simply put that the Accused Person was somewhere other than where the Prosecution alleged that he was at the time of the commission of the offence.
See SOWEMIMO VS. THE STATE (2004) 11 NWLR PT. 885, PG. 515; AIGUOREGHIAN VS. THE STATE (2004) 3 NWLR PT. 860, PG. 367.
The law relating to Alibi is that an Accused Person who wishes to raise Alibi must raise it all at the earliest opportunity to enable the Police to investigate it. The Accused Person must offer evidence as to where he was at the time of the crime and with whom he was at the material time.

See ONYEGBU VS. THE STATE (1995) 4 NWLR PT. 391, PG. 510; EYISI VS. THE STATE (2000) 12 SC PT. 1, PG. 24.
Usually where an Accused Person makes a Statement to the Police before the trial that he intends to rely on his defence of Alibi, the Police ought to investigate it before trial. Either to identify whether the Accused Person was infact at that other place during the commission of the offence, or at the scene of crime.
An Accused Person is not expected to prove his Alibi. It behoves on the Prosecution to disprove the Alibi consequently, once there is the slightest defence of Alibi, the plea must be investigated. Failure of the Prosecution to investigate the Alibi raised is fatal to the Prosecution’s case. See SOWEMIMO VS. THE STATE (Supra); AIGUOREGHIAN VS. THE STATE (2004) 3 NWLR PT. 860, PG. 367.
An Accused Person can still be convicted of the crime where the Prosecution failed to investigate his Alibi if there is a strong and credible evidence before the Court. See AIGUOREGHIAN VS. THE STATE (Supra); NWOSISI VS. THE STATE (1976) 6 SC PG. 109.
The law relating to Alibi is that the Accused Person who intends to rely

on the defence of Alibi, must raise it at the earliest possible opportunity to allow for time to investigate it. See ONYEGBU VS. THE STATE (1995) 4 NWLR PT. 391, PG. 510; EYISI VS. THE STATE (Supra).

For this and the more comprehensive reasoning in the lead judgment, I hold that the Appeal is unmeritorious and therefore fails. It is dismissed. I affirm the judgment of the lower Court in its conviction and sentencing of the Appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, IBRAHIM SHATA BDLIYA, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. This appeal is hereby dismissed.

Appearances:

Abiodun Dada. Esq, with him, Oluwashehun Ajiboye, Esq. For Appellant(s)

M.O Yusuf Esq (CSC) with him, S.O Dada (CSC), O.O David (ACSC) and A.O Hameed (SSC) For Respondent(s)