BAJOGA v. STATE (2021)

BAJOGA v. STATE

(2021)LCN/15143(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/G/59C/2020

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALI BAJOGA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHEN WILL AN APPELLATE COURT INTERFERE WITH THE EVIDENCE WHICH THE LOWER COURT HAD EVALUATED

My duty is not to re-evaluate the evidence which the lower Court used in carrying out its duty has done by evaluating the evidence. I will not interfere with the finding of the lower Court except if the finding is perverse which is that the finding does not correspond with the evidence before the lower Court. In Okoye & Anor vs Obiaso & Ors (2010) 3 FWLR (pt. 531) 5255, the apex Court held: “An Appellate Court will not interfere with the findings by the lower Court unless the findings are perverse or the lower Court raised wrong inference upon accepted facts or applied wrong principle to such facts.” PER EBIOWEI TOBI, J.C.A.

POSITION OF THE LAW REGARDING THE BURDEN AND STANDARD OF PROOF REQUIRED IN CRIMINAL MATTERS

The law on the burden of proof in criminal matters is trite to the effect that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden squarely lies on the shoulders of the prosecution which does not shift and the standard of proof required is beyond reasonable doubt. See Almu vs. State (2009) 10 NWLR (pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (pt. 113) 57, the apex Court held: “The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.” Similarly, the Supreme Court in Njokwu vs State (2013) 2 S.C (pt. II) 1 acknowledged this when the Court held: “The general principle of law is well settled in plethora of authorities that the burden of proof is all criminal cases is upon the Prosecution to prove the accused guilty of the offence charged beyond reasonable doubt. It is not for the accused to prove his innocence as this will negate the Constitutional provision that the accused is presumed innocent until proved otherwise. Our judicial system of adjudication is adversarial and not inquisitorial. However and for purpose of availing an accused person the benefit of the defences which will serve a mitigating factor against his conviction, the onus is upon him to raise such a defence which can only be within his knowledge. The Prosecution cannot be saddled with that which is not known to it. The law is firmly upheld therefore that even where the Prosecution had succeeded in proving an accused person guilty of an offence charged, for instance as it is with the nature of the offence considered in this appeal, the proof of the defences available could earn a reprieve as mitigating factor.” See also Afuape vs State (2020) 17 NWLR (pt. 1754) 381. The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not imply proof beyond all shadow of doubt or beyond all reasonable doubt, as prove in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the prove required must be that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, J.S.C. held: “A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v. State (2009) 16 NWLR (pt. 1168) 443 per Tobi J.S.C. thus:- The expression beyond reasonable doubt in evidence means fully satisfied entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which mean that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him. The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto. It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation. The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v. State (2011) 18 NWLR (pt. 1278) 1 and held thus:- All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial Judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a Judge to rely on his belief or disbelief. The learned trial Judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”The prosecution in proving its case beyond reasonable doubt against the Appellant must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. See Yakubu vs State (2014) 8 NWLR (pt. 1408) 111. The Supreme Court drove home this point when it held that for a Court to convict an accused, the Court must be fully convinced that all the ingredients or the elements of the offence were duly proved beyond reasonable doubt. Proof beyond reasonable doubt means or entails establishing the guilt of the accused person through the production of conclusive and compelling evidence. SeeGolit vs I.G.P. (2020)7 NWLR (pt. 1722) 40. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (pt. 1347) 360, the Supreme Court held: “Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.” For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the fact that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt must relate to the ingredients of the offence as this is what really matters in establishing the guilt of any person in a criminal offence. Doubt which will make a Court doubt whether the accused committed the offence must relate to the ingredient of the offence. The point I am trying to make here is that it is not all doubts that are material to the case. The doubt created by contradictions in the evidence of the prosecution will be of no moment if they do not relate to the ingredient of the offence. A defence lawyer main agenda under cross examination is to discredit the evidence of the prosecution by creating doubts in the mind of the Court on the existence of the ingredients of the offence. Trying to create doubt on issues that do not relate to the ingredients of the offence is mere show with no effect whatsoever on the judgment. Such a doubt which does not relate to the ingredient of the offence will be fanciful doubts. See Aikhadueki vs. State (2014) 15 NWLR (pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC); In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the Court held: “Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitates as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.” The duty on the prosecution is not to prove on the balance of probability the guilt of the accused person but rather beyond reasonable doubt based on the premise that it is better for ten guilty people to go free than for one innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (pt. 1532) 196;Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (pt. 1) 78.In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus: ”It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that:”…….. to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did. ”and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” Similarly in Kolade vs The State (2017) 2 S.C. (pt. III) 106, the apex Court drove home this point in these words: “As rightly submitted on behalf of the appellant, allegation of mere suspicion, no matter how strongly presented cannot displace the heavy duty placed on the prosecution to prove the accused’s guilt.” PER EBIOWEI TOBI, J.C.A.

IMPORTANCE OF THE ISSUE OF IDENTIFICATION OF AN ACCUSED AS ONE WHO ACTUALLY COMMITTED THE OFFENCE

This is a very important aspect of criminal liability. Even if the prosecution is able to prove all the ingredient of any offence a person is charged with but if he fails to prove that the person accused actually committed the offence, all the exercise will be in futility. To avoid the wrong person been convicted, it is crucial that there must be enough compelling evidence that the person charged actually committed the offence. The apex Court made this point clear while showing the importance of connecting an accused to the offence in the case of The State vs Ibrahim Yahaya (2019) 13 NWLR (pt. 1690) 397 in these words: “The Court below reversed the conviction and sentence of the respondent, on the ground, inter alia that there was insufficient identification evidence fixing the appellant at the scene of the crime. It is important to note that in order to establish its case against an accused person beyond reasonable doubt as required by Section 139 of the Evidence Act, the prosecution must prove that the accused person was one of those who committed the offence.” PER EBIOWEI TOBI, J.C.A.

CIRCUMSTANCES WHERE IDENTIFICATION OF THE ACCUSED SHOULD BE DONE BY RECOGNITION

Where the victims of the offence knew the Appellant before then or the Appellant is arrested at the scene of the offence or shortly after the commission of the offence or when the victim had the opportunity of seeing the person who committed the offence at the scene of the crime what will be necessary is recognition and not identification parade. If on the other hand, the victim never knew the Appellant and they were arrested later in time, there may be need for identification parade. See Maba v. State (2021) 1 NWLR (pt. 1757) 352. PER EBIOWEI TOBI, J.C.A.

HOW THE ISSUE OF IDENTITY OF AN ACCUSED AS ONE WHO ACTUALLY COMMITTED THE OFFENCE CAN BE ESTABLISHED

…it will not be out of place to state that the evidence of the victims must be clear on the issue of identity which can be established by either recognition or identification parade. Recognition arises when a person sees and identifies a person he knows before the commission of the offence. See Onyekwere vs. State (2016) ALL FWLR (pt. 841) 1415; Rasheed vs. State (2014) LPELR-22456 (CA). When a person does not know the offender before the commission of the offence and the arrest was not done within the scene of the offence, the identity of the offender can be established by identification parade. See Ogu vs. C.O.P. (2018) 8 NWLR (pt. 1620) 134; Adebayo vs. State (2014) ALL FWLR (pt. 743) 1994. PER EBIOWEI TOBI, J.C.A.

ESSENCE OF AN IDENTIFICATION PARADE AND CIRCUMSTANCES WHERE IDENTIFICATION PARADE WOULD BECOME NECESSARY

The essence of an identification parade is to enable an eye witness who never knew the accused to pick him out from the line-up of people including the accused. Since finding the perpetrator of a crime is a major ingredient of an offence, both the police, the ministry of justice must be sure that the person brought to Court is the person who actually committed the offence. In Okiemute vs. The State (2016) 15 NWLR (pt. 1535) 297, the apex Court per Okoro, J.S.C. held: “Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice. Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses who saw when the offence was committed. An accused can also be identified under Section 167 (a) of the Evidence Act 2011.” If both the police and the ministry of justice or the prosecution makes a mistake on this, the Court must be vigilant to ensure that it is convicting the right person. The Court must ensure mistaken identity is avoided. The law is trite as to when an identification parade will be necessary. An identification parade will be necessary under the following circumstances: 1. When the victim of the crime never knew the offender or accused before 2. Where the victim was confronted by the offender for a very short while 3. Where the victim, due to time and circumstance might not have the opportunity of observing the features of the accused person or offender. The principle as to when identification parade will be needed and when it will not be needed is spelled out in a number of cases. In Adesina &Anor vs. The State (2012) 14 NWLR (pt. 1321) 429, the apex Court held: “I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues- 1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions 2. The length of the time the witness saw the suspect or defendant at a glance or longer observation 3. The opportunity of close observation. 4. Previous contact between the two parties. 5. The lighting conditions. Eyisi v. The State (2000) 15 NWLR (pt. 697) pg. 553. Okosi v. State (1989) 1 NWLR (pt. 100) pg.642. Alonge v. I.G.P .(1959) SCNLR pg.156. Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455. Ukorah v. State (1977) 4 SC pg.167. Ukpabi v. State (2004) 11 NWLR (pt. 884) pg.439. Ebri v. State (2004) 11 NWLR (pt. 885) pg. 589. It is trite however that where an accused person by his confession has identified himself, there would be no need for any further identification parade. Archibong v. State (2004) 1 NWLR (pt.855)” Similarly, in Ugwu vs. The State (2020) LPELR-49375 (SC), the apex Court took the same position but in different words thus: “It is settled that an identification parade is not necessary where there is other evidence leading conclusively to the identity of the perpetrators of the offence – See Ikemson V. State (1989) 3 NWLR (pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in the following situations:- Where the victim of the crime did not know the Accused before;- Where the victim was confronted by the offender for a very short time; and – Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person. The essence of an identification parade is, therefore, to enable an eye witness, who never knew the person accused of the crime before, to pick him out from amongst other people – See Adebayo V. State (2014) LPELR- 22988 (SC). See also the case of Alufohai V. The State (2014) LPELR- 24215 (SC), wherein my learned brother, Ariwoola, J.S.C., explained the rationale as follows – It is trite law 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. So, an identification parade becomes necessary when there is a need to establish the identity of a suspect. But there are many cases where an identification parade is of no use; such as when the suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is the person that committed the crime – See Moses Jua V. State (2010) 4 NWLR (pt. 1154) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors V. State (2000) 15 NWLR (pt.691) 555 SC.” As to when and how identification parade is done the case of Okanlawon vs. State (2015) 6-7 S.C (pt. 1) 115 is instructive where the apex Court per Ariowoola, J.S.C. held thus: “Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with evidence of identification, is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged. See; Patrick Ikemson v. The State (1989) 3 NWLR (pt. 110) 445; (1981) CLRN 1; Agboola v. The State (supra). 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; Black’s Law Dictionary, 9th Edition page 1014; Agboola Vs State (supra). Identification parade is ordinarily not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence. Generally, an identification parade would become necessary only in the following situations of visual identification – (i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence: (ii) Where the victim was confronted by the offender for a very short time; and (iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See; R v. Turnbull (1976) 3 ALL ER 549 or (1977) 2B 224 at 228-231; Ikemson v. The State (supra).” PER EBIOWEI TOBI, J.C.A.

POSITION OF THE LAW ON THE MEANING AND NATURE OF A CONFESSIONAL STATEMENT; WHETHER THE STATEMENT OF AN ACCUSED CAN BE RELIED UPON IN CONVICTING THE CO-ACCUSED; TESTS TO BE USED IN DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT

The law on confessional statement is clear. Section 28 of the Evidence Act, 2011 provides for what will amount to a confessional statement. The section provides thus: “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.” This definition has received a lot of judicial pronouncement. I will look at a few of them. In Akpan vs. State (2001) 7 SC (pt. II) 29, the apex Court per Karibi-Whyte, J.S.C. held: “Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extra judicial confessions are those made otherwise than in the course of judicial proceedings.” Similarly, in Nguma vs. A.G Imo State (2014) 7 NWLR (pt. 1405) 119; Okoro, J.S.C. at pages 61-62 held: “Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence. (2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.” Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. See PETER vs. STATE (1997) 12 NWLR (pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (pt. 1101) 518, (2008) 4 – 5 SC (pt. 1) 191.” See alsoOnyenye vs. State (2012) 15 NWLR (pt.1324)586; Lasisi vs. State (2013) 9 NWLR (pt.1358) 745. A confession is a statement made by the accused admitting that he committed the offence. This is a powerful piece of evidence against interest and it can form the basis of the conviction of the person who made the confession. I must be quick to add that if confessional statement is admitted as a statement made voluntarily and seen to be cogent, it can be used as the sole ground to convict the accuse. See Hassan vs State (2017) 5 NWLR (pt. 1557) 1. The statement of an accused however cannot be used as ground to convict the co-accused when there is no proper corroboration of that statement against the co-accused or when the statement is not made available to the co-accused. See The State vs Sqn. Leader O.T. Onyeukwu (2004) 14 NWLR (pt. 893) 340. The Supreme Court has gone ahead to hold that it will not be out of place to rely on the statement of a co-accused when the co-accused is charged along with the accused. This clarification was made in the case of Uche Nwodo vs The State (2018) LPELR-46335 (SC) where the apex Court held thus: “Before I go into the merit or otherwise of the Appellant’s grouse in this case, I must clarify the reference made to the extra-judicial Statements of the first Defendant to the Police [Exhibits B – B1], by the Court of Appeal, as if there is no distinction between the Statements and his oral testimony, in relation to the Appellant. Let me explain. The position of the law is that the Statement of the Co-accused to the Police is different and distinguishable from his evidence in Court. The Statement remains his Statement and not his evidence, and it is binding on him only – Suberu V. State (2010) 8 NWLR (pt. 1197) 586 SC. However, where evidence incriminating an Accused comes from the Co-Accused, the Court is at liberty to rely on it, provided the Co-Accused, who gave such incriminating evidence, was tried along with that Accused Person – see Dairo V. The State (2017) LPELR-43724(SC) and Michael V. State (2008) 13 NWLR (pt. 1104) 383, where this Court held – “The fact that the evidence was that of a Co-accused does not prevent it from being a credible and reliable evidence, once he was jointly tried with the other Accused Persons.” The position of the Supreme Court in my view had stated that an extra judicial statement of a co-accused that has form part of the evidence in Court has the capacity to be used as evidence against the accused once it is corroborated. This position recognizes the general position of the law on whether conviction can be based solely on the confessional statement of an accused. The law on this is settled. Let us take an excursion into the law on this. Conviction can be based on the sole confessional statement of the accused notwithstanding the retraction of the statement by the accused at the trial. Once it is proved to be made voluntarily, positive and unequivocal, it can be used to convict the accused. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (pt. III) 114, the Supreme Court per Adekeye, J.S.C. held: “By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional. When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. Egboghonome vs. State (1993) 7 NWLR (pt.306) pg. 383. Bature vs. State (1994) 1 NWLR (pt.320) pg. 267. Solola vs. State (2005) 11 NWLR (pt.937) pg.460. Edhigere vs. State (1996) 8 NWLR (pt.464) pg.1. Uluebeka vs. The State (2000) 4 SC (pt.1) pg. 303. Idowu vs. State (2000) 7 SC (pt.11) pg.50. Alarape vs. State (2001) 14 WRN 1.” See also State vs Ahmed (2020) 14 NWLR (pt. 1743) 1. The Courts have overtime particularly the Supreme Court has held that for a confessional statement to be used to convict the accused such a statement must pass the veracity test. This test simply put is for the Court to test the veracity of the statement so that it will be safe to rely on same to convict the maker. This implies that a Court will look for other evidence before it outside the statement that point to the fact that the accused committed the offence he admitted to in his statement. This test is important because many a times accused persons are compelled to admit to crimes, they did not commit to escape torture from the police. In Akinrinlola vs The State (2016) 16 NWLR (pt. 1537) 73 the apex Court held: “It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later retracted, the retraction will not vitiate its admission as a voluntary statement… This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (pt.138) 150, the Supreme Court stated: – That to test the veracity of a confessional statement, the following should be evident: – 1. Is there anything outside the confession which shows that it may be true? 2. Is it corroborated in anyway? 3. Are the relevant statement of facts made in it most likely true as far as they can be tested? 4. Did the accused have the opportunity of committing the offence? 5. Is the confession possible? 6. Is the alleged confession consistent with other facts which have been ascertained and established? Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.” See also Bio vs State (2020) 7 NWLR (pt. 1723) 218. PER EBIOWEI TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Hon. Justice B.L. Iliya (Mrs.) of the Gombe High Court delivered on 12/3/19 in Suit No: GM/61C/2015 The State Vs Sale Umar & Ors wherein 5 accused persons including the Appellant herein, 5th Accused in the lower Court was found guilty for conspiracy and armed robbery punishable under Sections 5(b) & 1(2)(b) respectively of the Robbery and Firearms (Special Provision) Act 1990 as amended. The Appellant along with the other Accused persons were sentenced to death by hanging following their conviction. In the judgment of the lower Court found on pages 351-397 of the records, particularly on pages 393 His lordship held:
“From the available evidence before this Court, there is a stronger and credible evidence that all the 5 accused persons participated in the commission of the crime, so the defence of alibi does not avail them.
On the whole I am satisfied that the prosecution has discharged the burden of proof placed on it in this case as required by law.
I hereby find the 1st, 2nd, 3rd, 4th and 5th accused persons guilty of the offence of

conspiracy to commit armed robbery and each of them is convicted as charged in count 1.
I also find the 1st, 2nd, 3rd and 5th accused persons guilty of the offence of armed robbery and each of them is hereby convicted as charged in count 3.”

Consequent upon the conviction, on pages 396-397 of the record, His Lordship sentenced the accused persons accordingly:
“Under Section 1(2)(b) of the Robbery and Firearms Special Provision Act 1990. Any person who commits the offence of armed robbery shall be liable to conviction and shall be sentenced to death…..
Having listened to the Allocutus from counsel on both sides and also looking at the provision of the Robbery and Fire Arms Special Provision Act, both Section 1(2)(b) and Section 5(a)(b) are all mandatory section(sic). Being mandatory my hands are tied.
That to pronounce the sentence according to the law in view of that
Under Count 3
The 1st, 2nd, 3rd and 5th convict (sic) persons are hereby sentenced to death each for armed robbery.
Under count 1 which is conspiracy to commit armed robbery the 1st, 2nd, 3rd and 4th convict are hereby sentenced to death each

for criminal conspiracy to commit (sic) armed robbery…… The sentence deal upon you the 1st, 2nd, 3rd, 4th and 5th convict, is that you be hanged by the neck until you be dead.
May the Lord have mercy on your souls.”

Dissatisfied with the judgment, the Appellant (5th Accused in the lower Court) filed a Notice of Appeal dated 30/4/19 found on pages 398-404 of the record containing 5 grounds of appeal. I will reproduce the grounds of appeal bereft of their particulars as follows:
1. The learned Honourable Trial Court erred in law and in fact when it failed to resolve the issue on the identity of the persons who took part in the robbery of PW 1 and PW 2 despite holding inter alia: “The question here is whether the identity of the 1st and 2nd accused person and indeed the 3rd and 5th accused person (sic) were shounded (sic) in mystery”.
2. The learned Honourable Trial Court erred in law when it held inter alia: “The evidence of PW 1 – 7 and the confessional statement of the 2nd, 3rd, and 5th accused persons was never challenged, discredited nor controverted (sic) by the defence during cross examination.

The evidence PW 1 – 7 and the confessional statement of the 2nd, 3rd and 5th accused persons corroborated each other in establishing that they participated in the armed robbery including the 1st accused. Though the 1st accused in his statements to the police in exhibits 1 and 1(a) exhibit 10 and 11(i) and 11(2) denied participating in the robbery there were credible evidence before the Court…”
3. The learned Honourable Trial Court erred in law when it held at page 12 of its judgment inter alia: “…The PW 4 tendered the statement of the 1st, 2nd, 3rd, and 5th accused persons in evidence after a trial within trial…”
4. The learned Honourable Trial Court erred in law when the Honourable Court held that “…there is a lot outside the confessional statement of the accused person to arrest (sic) to its veracity as borne out of the evidence of other witnesses…”
5. The conviction of the Appellant cannot be supported having regard to the weight of evidence adduced at the trial.

The Learned Counsel to the Appellant Bob C.O. Ijioma Esq who settled the brief of the Appellant filed on 20/11/2020 deemed on 14/1/21 formulated 4 issues for determination. These are:
a. Whether the victims of the armed robbery attack properly and sufficiently identified the Appellant as one of the robbers that attacked them.
b. Whether the Honourable Trial Court was right in relying solely on the extra judicial statements of the Appellant and the other defendants in the matter which did not comply with provisions of Section 15(4) and 17(2) & (3) of the Administration of Criminal Justice Act, 2015 in convicting and sentencing the Appellant to death by hanging.
c. Whether the Honourable Trial Court was right in holding that “…there is a lot outside the confessional statement of the accused person to arrest (sic) to its veracity as born out of the evidence of other witnesses … despite PW – 4’s evidence that search conducted at Appellant’s house did not reveal anything incriminating.
d. Whether the Respondent adduced sufficient evidence to warrant judgment of the Honourable Trial Court in its favour.

In addressing issue 1, learned counsel answered the question in the negative more so that none of the robbers were arrested at the scene of the crime. In the circumstance, it is counsel’s submission that identification parade should have been conducted by the police so as to be certain that the Appellant was among those who participated in the robbery. The failure of the police to conduct an identification parade in this case, counsel submitted is fatal to the case of the Respondent. For this proposition, learned counsel referred to a lot of cases including Usufu vs The State (2007) 3 NWLR (pt. 1020) 94 @ 121-122; Patrick vs State (2019) LPELR-47798 (CA); Okeke vs State (2016) LPELR-40024; Oguvs C.O.P (2017) LPELR-43832 (SC). It is counsel’s emphatic submission that since by the evidence of the victims, PW1 & PW2, they only saw the face of the 1st accused, the police should have conducted an identification parade to determine whether the Appellant was among those who robbed them, failure to do so the Appellant conviction should be declared null and void and therefore quashed.

Learned Counsel also answers issue 2 in the negative. Noting that the lower Court based the conviction of the Appellant strongly on the confessional statement

of the Appellant, counsel attacked the admission of the said confessional statement on the ground that the statement was admitted without regard to the mandatory provision of Sections 15(4) and 17(2) of The Administration of Criminal Justice Act (ACJA) 2015 which requires that no confessional statement should be taken from a suspect alone. The purpose of the requirement of the above provisions of ACJA is to safeguard the need for transparency in police investigation. For the purpose of the sections and the effect of none compliance with the sections of ACJA referred to above, counsel placed reliance on Owhoruke vs C.O.P (2015) 15 NWLR (pt. 1483) 557 @ 565 (SC); Charles vs FRN (2018) 13 NWLR (pt. 1635) 50 @ 55-56 (CA); Zhiya vs People of Lagos State (2016) LPELR 40562 (CA). It is counsel’s submission on this issue that since the statement of the Appellant was taken without due compliance with Sections 15(4) and 17(2) of ACJA, the statement should be rejected and therefore the conviction be quashed. He urged Court to resolve this issue in favour of the Appellant.

On issue 3, learned counsel for the Appellant submitted that apart from the confessional statement there is no other cogent evidence that incriminates the Appellant or indeed connects the Appellant to the crime. Relying on the PW4 evidence to the effect that on searching the house of the Appellant they found nothing, counsel is bewildered as to how the lower Court could convict the Appellant. It is his further submission that the lower Court relied upon the evidence of the Appellant’s witness which at the best is based on suspicion which in law cannot be a ground to convict an accused person. Counsel relied on Aihenvba vs State (2016) LPELR-40134 (CA). This issue, counsel submitted should be resolved in favour of the Appellant.

In finally addressing issuing 4, Bob Ijioma Esq. of counsel submitted that looking at all the evidence before the lower Court, it cannot be said that the Respondent adduced sufficient evidence to secure or warrant judgment against the Appellant as the evidence is mainly based on suspicion. The inability of the Respondent to tender any of the stolen items in Court should have worked against the case of the Respondent he submitted further stating the importance of tendering those stolen items as exhibits. He relied on Lamidi vs State (2016) LPELR-41320 (CA); Unical & Ors vs Effiong & Ors (2019) LPELR-47976 (CA).

Finally, Learned Counsel for the Appellant urged this Court to allow the appeal and to quash the conviction of the Appellant.

The Respondent’s brief was settled by Abdulkadir Umar Ibrahim Esq., Senior State Counsel (SSC) of Gombe State, Ministry of Justice. He also argued the appeal. In the Respondent’s brief filed on 12/1/21 deemed on 14/1/21, the learned SSC raised 2 issues for determination from the 5 grounds of appeal. The issues as formulated by the Respondent are:
i. Whether the learned Trial Court was right in law in holding that the prosecution had proved its case beyond reasonable doubt against the Appellant for the offences of criminal conspiracy and armed robbery contrary to Sections 5(b) and 1(2)(a)(b) of the Robbery and Firearms (special provisions) Act 1990 (as amended).
ii. Whether the Trial Court was right in sentencing the Appellant for the offences of criminal conspiracy and armed robbery contrary to Sections 5(b) and 1(2)(a)(b) of the Robbery and Firearms (special provision) Act 1990 (as amended) based on the confessional statement of the Appellant.

The learned SSC in addressing issue 1 answered the question in the affirmative, that is to say, the lower Court was right to hold that the prosecution, that is the Respondent had proved its case beyond reasonable doubt against the Appellant. In this regard, learned counsel stated the correct position of the law on the burden and standard of prove required in criminal case. The learned SSC at this point took the offences the Appellant was charged with one after the other stating the ingredients of the offence showing the proof before the Court beyond doubt reasonable that warranted the lower Court to convict the Appellant.

Starting with count 1 dealing with conspiracy, it is the submission of counsel that to secure conviction for conspiracy, the prosecution must prove that there must exist a common criminal design or agreement by two or more persons to do any criminal act citing Oduneye vs State (2001) 83 LRCN 1; Patrick Njoven & Anor vs State (1973) 8 NSCC 366; Dabo & Anor vs State (1977) SSC 222; Sule vs The State (2009) 7 LRCNCC 1 @ 11. To establish conspiracy, counsel submitted that

circumstantial evidence is most appropriate as it is rarely incapable of direct proof and that it is established by the meeting of the mind of two or more persons to commit an offence. This meeting of the minds of two or more persons cannot be proved physically. Counsel referred to Nwosu vs State (2004) 15 NWLR (pt. 877) 466; Obiakor vs State (2002) 10 NWLR (pt. 776) 612.

It is the submission of counsel that the confessional statement of the Appellant and other accused persons (Exhibit 2A, 2B, 3, 4, 5 & 12) can be used to establish conspiracy as they establish clear inference of common intention to commit armed robbery. It is the further submission of counsel that in cases involving the offence of conspiracy once the common intention or agreement is established, it does not matter who plays what role. Counsel cited Sule vs State (supra); Abdullahi vs State (2010) 8 LRCNCC 32

On count 3 for armed robbery, the ingredients of the offence learned counsel stated clearly as in the cases of Nwaturuocha vs State (2011) 9 LRCNCC 1 @ 3; Bozin vs State (1985) 2 NWLR (pt 8) 465. These ingredients, counsel submitted can be proved by direct evidence, confessional

statement or circumstantial evidence. He relied on Emeka vs State (2001) 6 SCNJ 267;Amoshima vs State (2009) 4 NCC 280 at 296. It is the further submission of counsel that the Respondent had proved the case against the Appellant at the lower Court using all the 3 ways of establishing criminal liability. Learned SSC relied heavily on the evidence of PW1 & PW2 and the confessional statements of the Appellant and those of the co-accused in establishing each of the ingredients of the offence of armed robbery. Counsel cited Onyenye vs The State (2012) vol. 212 LRCN 107.

On the issue of identification parade counsel submitted that it is not in all cases that identification parade will be required particularly when the identity of the perpetrators of the offence can be ascertained by other means recognized by law. It is further submitted by counsel that identification parade is not a sine qua non to convict an accused person. Learned counsel cited Ukpabi vs The State (2004) 7 SCM 189 at 199-200; Ikemson vs State (1989) 3 NWLR (pt. 110) 455 while submitting that it is the legal requirement that before a Court can convict a person there must be evidence

identifying him as the person who committed the offence vide Okanlawon vs State (2015) 6-7 SC (pt. 1) 115; Nomayo vs State (2018) LPELR-44729 (SC) 12-14. It is counsel’s final submission on this point that the Respondent had proved its case beyond reasonable doubt in the lower Court and therefore the conviction is in order. Counsel cited Miller vs Minister of Pensions (1947) ALL ER 322, 373; Oyem vs FRN (2019) LPELR-47392 (SC) 15-16; Agbo vs State (2006) 6 NWLR (pt. 977) 545; Uwagboe vs State (2007) 6 NWLR (pt. 1031) 600.

On issue 2, it is the submission of counsel that a Court can convict on the strength of a confessional statement if it is cogent, direct, unequivocal and compelling as such a statement is given the highest place of authenticity when it comes to proof beyond reasonable doubt. Learned SSC referred to Usman vs State (2013) 5 SCNJ 65 at 75; Olubode vs State (2011) 9 LRCNCC 49; Fabiyi vs State (2015) 6-7 SC (pt. 83; Dogo vs State (2013); Blessing vs FRN (2015) LPELR-24689 (SC). Learned counsel was quick to submit however that, to convict on confessional statement, the statement must pass the veracity test approved in the cases of

Rex vs Skyes (1913) 18 CR App R 233; Ogudo vs State (2011) 18 NWLR (pt. 1278) 1; Oseni vs State (supra). It is his submission that through the evidence of the Prosecution witnesses, the confessional statement has passed the veracity test. The retraction of the confessional statement is of no moment and does not help the case of the Appellant as such a statement is admissible. For this submission counsel referred to Idowu vs State (2007) 7 SC (pt. II) 50; Silas vs State (1996) 1 NWLR 59; Kamila vs State (2018) LPELR-43603 (SC) 40; Akpa vs State (2008) ALL FWLR (pt. 420) 603, 665-666.

The Respondent relied heavily on the statement of the co- accused to justify the conviction and went on to submit that the Court can use the statement of a co-accused which incriminate the Appellant once they were tried together. Counsel relied on Dairo vs The State (2017) LPELR-43724 (SC); Michael vs State (2008) 13 NWLR (pt. 1104) 383 for his submission.

On the submission of non-compliance with the provisions of ACJA, it is the submission of learned SSC that this Court should discountenance the argument of counsel to the Appellant on the simple ground that as at when the

statements were made, ACJA had not come into force and since the ACJA did not have retrospective effect, the argument of the Appellant’s counsel cannot hold water. In addition to that argument, counsel submitted that issues of admissibility are governed by the Evidence Act which is a substantive law and as a result the Evidence Act takes precedence over ACJA which is a procedural law. Counsel referred toOlutayo Tade Oguntoyinbo vs FRN (Unreported); Dairo vs State (supra); Godwin Elewanna vs The State (2019) LPELR-47605 (CA). The second issue should also be resolved in favour of the Respondent. He finally urged the Court to dismiss this appeal.

The Appellant did not file a proper reply brief but rather filed an additional authority of Ahmed vs Nigerian Navy (2017) LPELR-44025 (CA) in response to paragraph 4.19 of the Respondent’s brief.

That is the summary of the submission of counsel to the Appellant and the Respondent. The Appellant has been convicted and sentenced to death and therefore facing the hangman. My duty is not to re-evaluate the evidence which the lower Court used in carrying out its duty has done by evaluating the evidence. I

will not interfere with the finding of the lower Court except if the finding is perverse which is that the finding does not correspond with the evidence before the lower Court. In Okoye & Anor vs Obiaso & Ors (2010) 3 FWLR (pt. 531) 5255, the apex Court held:
“An Appellate Court will not interfere with the findings by the lower Court unless the findings are perverse or the lower Court raised wrong inference upon accepted facts or applied wrong principle to such facts.”

I must caution myself in this regard. The lower Court found as a matter of fact that the Appellant conspired with others to rob the PW1 & PW2. The lower Court did not just stop there but went on to hold that the Appellant was among those who robbed them armed with gun and sticks. The lower Court to a large extent based the conviction on the confessional statement of the Appellant and the evidence of PW1 & PW2. The question is should the lower Court have done that bearing in mind the burden and standard of proof required in criminal matters and the trite principle of law that no criminal conviction should be based on suspicion and that the Prosecution in a

criminal matter has the burden to prove its case beyond reasonable doubt. If there is any material doubt which relates to the ingredients of the offence, the doubt will be resolved in favour of the accused. See FRN vs Abubakar (2019) LPELR-46533 (SC); Elegalam vs State (2020) 17 NWLR (pt. 1753) 338.
At this stage, it will be out of place to state some general legal principle in criminal law that will assist this Court in arriving at a decision one way or the other. A little excursion into criminal law without necessarily going into a criminal law class will be helpful. The law on the burden of proof in criminal matters is trite to the effect that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden squarely lies on the shoulders of the prosecution which does not shift and the standard of proof required is beyond reasonable doubt. See Almu vs. State (2009) 10 NWLR (pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (pt. 113) 57, the apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the

burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
Similarly, the Supreme Court in Njokwu vs State (2013) 2 S.C (pt. II) 1 acknowledged this when the Court held:
“The general principle of law is well settled in plethora of authorities that the burden of proof is all criminal cases is upon the Prosecution to prove the accused guilty of the offence charged beyond reasonable doubt. It is not for the accused to prove his innocence as this will negate the Constitutional provision that the accused is presumed innocent until proved otherwise. Our judicial system of adjudication is adversarial and not inquisitorial. However and for purpose of availing an accused person the benefit of the defences which will serve a mitigating factor against his conviction, the onus is upon him to raise such a defence which can only be within his knowledge. The Prosecution cannot be saddled with that which is not known to it. The law is firmly upheld

therefore that even where the Prosecution had succeeded in proving an accused person guilty of an offence charged, for instance as it is with the nature of the offence considered in this appeal, the proof of the defences available could earn a reprieve as mitigating factor.”
See also Afuape vs State (2020) 17 NWLR (pt. 1754) 381.
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not imply proof beyond all shadow of doubt or beyond all reasonable doubt, as prove in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the prove required must be that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, J.S.C.

held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v. State (2009) 16 NWLR (pt. 1168) 443 per Tobi J.S.C. thus:-
The expression beyond reasonable doubt in evidence means fully satisfied entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which mean that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt

that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v. State (2011) 18 NWLR (pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial Judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a Judge to rely on his belief or disbelief. The learned trial Judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving its case beyond reasonable doubt against the Appellant must bear in mind that he will have to prove all the ingredients of the

offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. See Yakubu vs State (2014) 8 NWLR (pt. 1408) 111. The Supreme Court drove home this point when it held that for a Court to convict an accused, the Court must be fully convinced that all the ingredients or the elements of the offence were duly proved beyond reasonable doubt. Proof beyond reasonable doubt means or entails establishing the guilt of the accused person through the production of conclusive and compelling evidence. SeeGolit vs I.G.P. (2020)7 NWLR (pt. 1722) 40.
The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the

prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the fact that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt must relate to the ingredients of the offence as this is what really matters in establishing the guilt of any person in a criminal offence. Doubt which will make a Court doubt whether the accused committed the offence must relate to the

ingredient of the offence. The point I am trying to make here is that it is not all doubts that are material to the case. The doubt created by contradictions in the evidence of the prosecution will be of no moment if they do not relate to the ingredient of the offence. A defence lawyer main agenda under cross examination is to discredit the evidence of the prosecution by creating doubts in the mind of the Court on the existence of the ingredients of the offence. Trying to create doubt on issues that do not relate to the ingredients of the offence is mere show with no effect whatsoever on the judgment. Such a doubt which does not relate to the ingredient of the offence will be fanciful doubts. See Aikhadueki vs. State (2014) 15 NWLR (pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC); In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the Court held:
“Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might

conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitates as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.”
The duty on the prosecution is not to prove on the balance of probability the guilt of the accused person but rather beyond reasonable doubt based on the premise that it is better for ten guilty people to go free than for one innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR

(pt. 1532) 196;Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (pt. 1) 78.In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus:
”It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that:”…….. to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did. ”and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of

evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”
Similarly in Kolade vs The State (2017) 2 S.C. (pt. III) 106, the apex Court drove home this point in these words:
“As rightly submitted on behalf of the appellant, allegation of mere suspicion, no matter how strongly presented cannot displace the heavy duty placed on the prosecution to prove the accused’s guilt.”

Haven laid the foundation, I will now address this appeal on the merit. In doing that I will adopt the issues formulated by the Appellant as the issues so raised covers the grounds of appeal effectively. For completeness I will reproduce them again as follows:
a. Whether the victims of the armed robbery attack properly and sufficiently identified the Appellant as one of the robbers that attacked them.
b. Whether the Honourable Trial Court was right in relying solely on the extra judicial statements of the Appellant and the other defendants in the matter which did not comply with provisions of

Section 15(4) and 17(2) & (3) of the Administration of Criminal Justice Act, 2015 in convicting and sentencing the Appellant to death by hanging.
c. Whether the Honourable Trial Court was right in holding that “…there is a lot outside the confessional statement of the accused person to arrest (sic) to its veracity as borne out of the evidence of other witnesses … despite PW – 4’s evidence that search conducted at Appellant’s house did not reveal anything incriminating.
d. Whether the Respondent adduced sufficient evidence to warrant judgment of the Honourable Trial Court in its favour.

I will now take the issues one after the other. The first issue deals with the issue of identification. This is a very important aspect of criminal liability. Even if the prosecution is able to prove all the ingredient of any offence a person is charged with but if he fails to prove that the person accused actually committed the offence, all the exercise will be in futility. To avoid the wrong person been convicted, it is crucial that there must be enough compelling evidence that the person charged actually committed the

offence. The apex Court made this point clear while showing the importance of connecting an accused to the offence in the case of The State vs Ibrahim Yahaya (2019) 13 NWLR (pt. 1690) 397 in these words:
“The Court below reversed the conviction and sentence of the respondent, on the ground, inter alia that there was insufficient identification evidence fixing the appellant at the scene of the crime. It is important to note that in order to establish its case against an accused person beyond reasonable doubt as required by Section 139 of the Evidence Act, the prosecution must prove that the accused person was one of those who committed the offence.”
For the conviction of the Appellant to be upheld in this Court, it must be proved beyond reasonable doubt that the Appellant was one of the persons who robbed the PW1 & PW2. If such evidence is lacking or shaking, a Court should not convict the Appellant more so on an offence that carries the capital punishment. The identity of the Appellant as one of those who committed the offence is very crucial. This is most important so that the wrong person is not convicted and sent to the hangman.

The identity of the Appellant as the person who committed the offence along with others is the most crucial ingredient of the offence. Once the issue of identity is in contention the Court must settle that. To establish this, the victim of the offence in this instance, PW1 & PW2 has to positively identify the Appellant as one of the persons who robbed them. This can be done in law by recognition or by identification parade. Where the victims of the offence knew the Appellant before then or the Appellant is arrested at the scene of the offence or shortly after the commission of the offence or when the victim had the opportunity of seeing the person who committed the offence at the scene of the crime what will be necessary is recognition and not identification parade. If on the other hand, the victim never knew the Appellant and they were arrested later in time, there may be need for identification parade. See Maba v. State (2021) 1 NWLR (pt. 1757) 352.
Before I look at the facts of this case to determine whether identification parade was necessary in this case, it will not be out of place to state that the evidence of the victims must be clear on the

issue of identity which can be established by either recognition or identification parade. Recognition arises when a person sees and identifies a person he knows before the commission of the offence. See Onyekwere vs. State (2016) ALL FWLR (pt. 841) 1415; Rasheed vs. State (2014) LPELR-22456 (CA). When a person does not know the offender before the commission of the offence and the arrest was not done within the scene of the offence, the identity of the offender can be established by identification parade. See Ogu vs. C.O.P. (2018) 8 NWLR (pt. 1620) 134; Adebayo vs. State (2014) ALL FWLR (pt. 743) 1994. The Respondent must establish through the evidence of PW1& PW2 either by recognition or identification parade that the Appellant was among those who robbed them. It is not in dispute looking at the record of appeal and the evidence of all the parties that identification parade was not conducted. The question therefore is whether identification parade ought to have been conducted?

The essence of an identification parade is to enable an eye witness who never knew the accused to pick him out from the line-up of people including the accused. Since

finding the perpetrator of a crime is a major ingredient of an offence, both the police, the ministry of justice must be sure that the person brought to Court is the person who actually committed the offence. In Okiemute vs. The State (2016) 15 NWLR (pt. 1535) 297, the apex Court per Okoro, J.S.C. held:
“Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice. Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses who saw when the offence was committed. An accused can also be identified under Section 167 (a) of the Evidence Act 2011.”
If both the police and the ministry of justice or the prosecution makes a mistake on this, the Court must be vigilant to ensure that it is convicting the right person. The Court must ensure mistaken identity is avoided. The law is trite as to when an identification parade will be necessary. An identification parade will be necessary under the following circumstances: 1. When the victim of the crime never knew the offender or

accused before
2. Where the victim was confronted by the offender for a very short while
3. Where the victim, due to time and circumstance might not have the opportunity of observing the features of the accused person or offender
The principle as to when identification parade will be needed and when it will not be needed is spelled out in a number of cases. In Adesina &Anor vs. The State (2012) 14 NWLR (pt. 1321) 429, the apex Court held:
“I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues-
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or

defendant at a glance or longer observation
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. The State (2000) 15 NWLR (pt. 697) pg. 553.
Okosi v. State (1989) 1 NWLR (pt. 100) pg.642.
Alonge v. I.G.P .(1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt. 884) pg.439.
Ebri v. State (2004) 11 NWLR (pt. 885) pg. 589.
It is trite however that where an accused person by his confession has identified himself, there would be no need for any further identification parade. Archibong v. State (2004) 1 NWLR (pt.855)”
Similarly, in Ugwu vs. The State (2020) LPELR-49375 (SC), the apex Court took the same position but in different words thus:
“It is settled that an identification parade is not necessary where there is other evidence leading conclusively to the identity of the perpetrators of the offence – See Ikemson V. State (1989) 3 NWLR (pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in

the following situations:
– Where the victim of the crime did not know the Accused before;
– Where the victim was confronted by the offender for a very short time; and
– Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.
The essence of an identification parade is, therefore, to enable an eye witness, who never knew the person accused of the crime before, to pick him out from amongst other people – See Adebayo V. State (2014) LPELR- 22988 (SC).
See also the case of Alufohai V. The State (2014) LPELR- 24215 (SC), wherein my learned brother, Ariwoola, J.S.C., explained the rationale as follows –
It is trite law 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.
So, an identification parade becomes necessary when there is a need to establish the identity of a suspect. But there are many cases where an identification parade is of no use; such as when the suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness; and when evidence adduced is sufficient to establish that the suspect is the person that committed the crime – See Moses Jua V. State (2010) 4 NWLR (pt. 1154) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors V. State (2000) 15 NWLR (pt.691) 555 SC.”
As to when and how identification parade is done the case of Okanlawon vs. State (2015) 6-7 S.C (pt. 1) 115 is instructive where the apex Court per Ariowoola, J.S.C. held thus:
“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with evidence of identification, is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused

before the Court was actually the person who committed the offence with which he is charged. See; Patrick Ikemson v. The State (1989) 3 NWLR (pt. 110) 445; (1981) CLRN 1; Agboola v. The State (supra).
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; Black’s Law Dictionary, 9th Edition page 1014; Agboola Vs State (supra).
Identification parade is ordinarily not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.
Generally, an identification parade would become necessary only in the following situations of visual identification –
(i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence:
(ii) Where the victim was confronted by the

offender for a very short time; and
(iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See; R v. Turnbull (1976) 3 ALL ER 549 or (1977) 2B 224 at 228-231; Ikemson v. The State (supra).”
It is clear that from the evidence before the Court, identification parade would have been necessary. The evidence of PW1 & PW2 is to the effect that it was only the 1st accused they recognized because he was not wearing a mask and all others were masked. The PW1 even went on to say the incident happened a long time ago and she could not confirm apart from the 1st Accused who the other robbers were. The Appellant clearly from the evidence could not properly and sufficiently identify the Appellant as one of the persons who robbed the PW1 & PW2. I resolve this issue in favour of the Appellant.

I will take issues 2 and 3 together as they all relate to conviction based on confessional statement. I have read the judgment of his lordship and it will not be far from the truth that the conviction Appellant is largely, if not, mainly based on the confessional statement of the Appellant and those of the co-accused.

I will deal with the issue whether the non-compliance with the provision of ACJA in taking the Appellant’s statement is fatal to the admissibility of the confessional statement of the Appellant that is Exhibits 3. By the provision of Sections 15(4) and 17(2) of ACJA which came into operation on 13/5/2015, the police while taking the statement of an accused particularly when it is a confessional statement, the accused should not be alone as such a statement must be taken in the presence of his lawyers or any of the persons stated therein. It is true that Exhibit 3 was not taken in the presence of the persons mentioned in Sections 15(4) & 17(2) of ACJA. The learned SSC has submitted correctly in my view that ACJA is not applicable to the present case as it relates to the taking of confessional statement. This is simply as the confessional statement was made before ACJA came into operation and clearly, the provision of ACJA cannot be used to determine the admissibility of statement made before it came into force. In fact, at that time, the relevant law for admissibility of written statement

by accused persons is the Evidence Act. ACJA came into force in 13/5/2015 and Exhibit 3 was made on 5/5/2015. The statement was made about 8 days before ACJA came into existence. To that extent non-compliance with ACJA as it relates to the taking of the confessional statement of the Appellant is of no moment.

The main point on this issue 2 is whether the lower Court was right in convicting the Appellant solely on Exhibit 3 made in English? The law on confessional statement is clear. Section 28 of the Evidence Act, 2011 provides for what will amount to a confessional statement. The section provides thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.”
This definition has received a lot of judicial pronouncement. I will look at a few of them. In Akpan vs. State (2001) 7 SC (pt. II) 29, the apex Court per Karibi-Whyte, J.S.C. held:
“Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”.

This definition is wide enough to cover both extra-judicial and judicial confessions. Extra judicial confessions are those made otherwise than in the course of judicial proceedings.”
Similarly, in Nguma vs. A.G Imo State (2014) 7 NWLR (pt. 1405) 119; Okoro, J.S.C. at pages 61-62 held:
“Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence.
(2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.” Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to

the charge against him is equally admissible. See PETER vs. STATE (1997) 12 NWLR (pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (pt. 1101) 518, (2008) 4 – 5 SC (pt. 1) 191.”
See alsoOnyenye vs. State (2012) 15 NWLR (pt.1324)586; Lasisi vs. State (2013) 9 NWLR (pt.1358) 745.
A confession is a statement made by the accused admitting that he committed the offence. This is a powerful piece of evidence against interest and it can form the basis of the conviction of the person who made the confession. I must be quick to add that if confessional statement is admitted as a statement made voluntarily and seen to be cogent, it can be used as the sole ground to convict the accuse. See Hassan vs State (2017) 5 NWLR (pt. 1557) 1. The statement of an accused however cannot be used as ground to convict the co-accused when there is no proper corroboration of that statement against the co-accused or when the statement is not made available to the co-accused. See The State vs Sqn. Leader O.T. Onyeukwu (2004) 14 NWLR (pt. 893) 340. The Supreme Court has gone ahead to hold that it will not be out of place to rely on the statement of a co-accused when

the co-accused is charged along with the accused. This clarification was made in the case of Uche Nwodo vs The State (2018) LPELR-46335 (SC) where the apex Court held thus:
“Before I go into the merit or otherwise of the Appellant’s grouse in this case, I must clarify the reference made to the extra-judicial Statements of the first Defendant to the Police [Exhibits B – B1], by the Court of Appeal, as if there is no distinction between the Statements and his oral testimony, in relation to the Appellant. Let me explain. The position of the law is that the Statement of the Co-accused to the Police is different and distinguishable from his evidence in Court. The Statement remains his Statement and not his evidence, and it is binding on him only – Suberu V. State (2010) 8 NWLR (pt. 1197) 586 SC. However, where evidence incriminating an Accused comes from the Co-Accused, the Court is at liberty to rely on it, provided the Co-Accused, who gave such incriminating evidence, was tried along with that Accused Person – see Dairo V. The State (2017) LPELR-43724(SC) and Michael V. State (2008) 13 NWLR (pt. 1104) 383, where this Court held –
“The

fact that the evidence was that of a Co-accused does not prevent it from being a credible and reliable evidence, once he was jointly tried with the other Accused Persons.”
The position of the Supreme Court in my view had stated that an extra judicial statement of a co-accused that has form part of the evidence in Court has the capacity to be used as evidence against the accused once it is corroborated. This position recognizes the general position of the law on whether conviction can be based solely on the confessional statement of an accused. The law on this is settled.
Let us take an excursion into the law on this. Conviction can be based on the sole confessional statement of the accused notwithstanding the retraction of the statement by the accused at the trial. Once it is proved to be made voluntarily, positive and unequivocal, it can be used to convict the accused. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (pt. III) 114,

the Supreme Court per Adekeye, J.S.C. held:
“By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. Egboghonome vs. State (1993) 7 NWLR (pt.306) pg. 383. Bature vs. State (1994) 1 NWLR (pt.320) pg. 267. Solola vs. State (2005) 11 NWLR (pt.937) pg.460. Edhigere vs. State

(1996) 8 NWLR (pt.464) pg.1. Uluebeka vs. The State (2000) 4 SC (pt.1) pg. 303. Idowu vs. State (2000) 7 SC (pt.11) pg.50. Alarape vs. State (2001) 14 WRN 1.”
See also State vs Ahmed (2020) 14 NWLR (pt. 1743) 1.
The Courts have overtime particularly the Supreme Court has held that for a confessional statement to be used to convict the accused such a statement must pass the veracity test. This test simply put is for the Court to test the veracity of the statement so that it will be safe to rely on same to convict the maker. This implies that a Court will look for other evidence before it outside the statement that point to the fact that the accused committed the offence he admitted to in his statement. This test is important because many a times accused persons are compelled to admit to crimes, they did not commit to escape torture from the police. In Akinrinlola vs The State (2016) 16 NWLR (pt. 1537) 73 the apex Court held:
“It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later

retracted, the retraction will not vitiate its admission as a voluntary statement… This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (pt.138) 150, the Supreme Court stated: –
That to test the veracity of a confessional statement, the following should be evident: –
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated in anyway?
3. Are the relevant statement of facts made in it most likely true as far as they can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the alleged confession consistent with other facts which have been ascertained and established?
Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.” See also Bio vs State (2020) 7 NWLR (pt. 1723) 218.

The question is whether in applying the above test, the lower Court was right to have convicted the Appellant? Is there any evidence outside the statement to corroborate the confession? I must state clearly that a statement that needs corroboration cannot be used to corroborate another statement. See James Gwangwan vs. State (2011) LPELR-4223 (CA). Looking at the evidence before the lower Court, it is difficult to find any evidence outside the confessional statement of the Appellant, Exhibit 3, to corroborate the confession. The victims of the robbery, PW1 & PW2 in their statement and evidence clearly showed that they could not recognize or identify the Appellant as one of those who robbed them. The only person they could identify and recognize in Court was the 1st accused because he was not wearing a mask. All others were wearing mask. From the evidence of PW1 & PW2 found on pages 223-231 of the record, there is nothing to corroborate the confession of the Appellant. In all the evidence of the other Prosecution witnesses, there is nothing connecting the Appellant to the robbery apart from the

evidence of PW4 to the effect that one of the stolen handsets was recovered from him. The handset was not tendered in Court for the PW1 & PW2 to identify as their handset. That makes that evidence unverifiable since the said handset was not tendered in Court as exhibit. Apart from that evidence, the PW4 also testified that when they conducted a search in Appellant’s house, they did not find anything incriminating.

I cannot see from all the evidence before the lower Court how the confessional statement passed the veracity and credibility test. From the evidence of the PW1 & PW2 which clearly shows that they could not identify the Appellant as one of those who rob them I am at a loss as to the conviction of the Appellant based on the finding of the lower Court that they interacted with the robbers. I make bold to say that even if there was an interaction, it is not sufficient to convict the Appellant for the offence of conspiracy and armed robbery as there was no proper identification of the Appellant. The lower Court in my view did not properly apply the veracity test to the confessional statement of the Appellant. I am compelled to resolve issues 2 & 3 in favour of the Appellant.

The answer to issue 4 is obvious and clear by now. Haven resolved issues 1, 2 and 3 in favour of the Appellant there is no way that issue 4 can be resolved against the Appellant. For the offence of armed robbery, the Respondent in the lower Court must prove the three ingredients of the offence to wit:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
In Amos vs. The State (2018) LPELR-44694 (SC), the apex Court per Bage, J.S.C. at pages 28-30 stated the above ingredients of the offence of armed robbery when it held:
“The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See:

AWOSIKA VS THE STATE (2010) 9 NWLR (pt. 1198) 40 at 71-73.” Per Peter-Odili, J.S.C. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, J.S.C., (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi J.S.C. (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi J.S.C. (supra) observed that: –
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.”
See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118;

NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.”
Similarly in Awosika vs. State (2018) LPELR-4435 (SC), the apex Court per Sanusi, J.S.C. at pages 27-28 held:
“It is settled law, that in order to establish the offence of armed robbery, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 (as amended) the prosecution must prove the under listed salient ingredients of the offence which include:-
(a) That there was a robbery or series of robbery incident(s)
(b) That the robbers or any of the robbers was armed with offensive weapons
(c) That the accused person(s) was/were the ones responsible of committing the offence
See State vs Adedamola Bello & Ors (1989) 1 CLRN 370; Bozin vs The State (1985) 7 SC (Reprint) 276; Balogun v. A.G Ogun State (2001) FWLR (pt.78) 1144 at 1160. The settled law is that in order to obtain conviction on the offence of armed robbery like in any other criminal matters the prosecution must prove the guilt of the accused person beyond

reasonable doubt as required and provided by Section 135 of the Evidence Act 2011 (as amended) See Woolmington v DPP (1935) AC 462; Uche v. State (2015) 4-5 SC (pt.11) 140 at 157; State v. Oladotun (2011) 5 SC (pt.11) 133; Sani v. State (2015) 6/7 SC (pt. 11)1 at 17 . It must be emphasized here, that where doubt exists as to the guilt of the accused person, the trial Court must give him the benefit of such doubt and acquit him of the offence charged. Now reflecting on the evidence adduced in this case vis-a-vis the above mentioned ingredients, it is incumbent on the prosecution to prove stealing of something capable of being stolen by the accused or any of the accused persons. See Offoing vs The State (1991) 8 NWLR (pt.103) 118; Okoko v. State (1964) ALL NLR 423; Obue v. State (1976) 2 SC 141.”
See Kareem Olatinwo vs. The State (2013) 8 NWLR (pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (pt. 1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (pt. 923) 123.

For the offence of conspiracy, it is established when there is an agreement between two or more people to do a lawful act by unlawful means or outright agreement to do an unlawful act. The apex

Court in this regard stated the ingredients of the offence of conspiracy in Taiye vs. The State (2018) LPELR-44466(SC) per Sanusi, J.S.C. at pages 21-22 when it held thus:
“This brings me to the offence of conspiracy to commit armed robbery. Conspiracy simply needs an agreement by two or more persons to do or cause to be done an illegal act, or an act which is legal but by illegal means.
The mere agreement alone constitutes the offence of conspiracy and it is immaterial to prove that the act was in fact committed. See Obiakor V. The State (2002) 6 SC (pt. II) 33 at 39/40.
The offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted. See Balogun v. AG Ogun State (2002)2 SC (pt. II)89.
It needs to be stressed here, that the essential ingredients of the offence of conspiracy to commit armed robbery lies in the agreement and association to do an unlawful thing or act which is contrary to or forbidden by law, whether that thing/act is criminal or not and whether the accused person has knowledge of its unlawfulness. The offence of conspiracy is often not proved

through direct evidence but the Courts normally infers such agreement or plot from the facts of doing things towards a common purpose. See Clark v. The State (1986) 4 NWLR (pt.35) 381; Oduneye v. State (2001)1 SC 1; Nwankwoala v. The State (2006) All FWLR (pt.339) 801.”
See alsoPhilip vs. State (2019) 13 NWLR (pt. 1690) 509 @ 545-546

The case of the Appellant in this appeal is that the Respondent has not proved the above ingredients of the offences of conspiracy and armed robbery beyond reasonable doubt, particularly with respect to the fact that the Appellant was the one who committed the offences and consequent upon that, the Appellant should have been discharged and acquitted on both counts.

The Respondent had failed in the lower Court as shown above to prove beyond reasonable doubt the offences of conspiracy and armed robbery against the Appellant. At best the case of the Respondent against the Appellant is based on suspicion and the law is clear that suspicion no matter how grave cannot be evidence before a Court good enough to convict the accused. Suspicion must graduate to be evidence before it can be used to convict an accused.

Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (pt. 1532) 196; Sopakiriba Igbikis vs. The State(2017) 2-3 S.C (pt. 1) 78.In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that:”… to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did, ”and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential

requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”
I resolve issue 4 in favour of the Appellant.

In the circumstance, I have no difficulty in holding that this appeal has merit and therefore it is allowed. The judgment of Hon. Justice B.L. Iliya (Mrs.) in Suit No: GM/61C/2015. The State Vs Sale Umar & Ors which convicted the Appellant and sentenced him to death is hereby set aside. The appropriate order to make therefore is to quash the conviction of the Appellant and consequently discharge and acquit him for the offences of conspiracy and armed robbery for which he was charged and convicted. I therefore set aside the conviction and sentence of the Appellant. As a consequent order, I hereby discharge and acquit the Appellant for the offences of conspiracy and armed robbery.
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JUMMAI HANNATU SANKEY, J.C.A.: I have read, in draft, the lead judgment of my learned brother, EBIOWEI TOBI, J.C.A., just delivered. He has admirably dealt with all the issues arising in this Appeal. I therefore agree with his reasoning and conclusion.

This is a sister Appeal to Appeal No. CA/G/57C/2020 and Appeal No. CA/G/58C/2020 arising from the same Judgment of the High Court of Justice Gombe State, delivered by B.L. Iliya, J. on 12-03-19 in Suit No. GM/61C/2015. Therein, the Appellant, as the 5th accused person, was convicted, along with four other accused persons, for the offences of conspiracy and armed robbery punishable under Sections 5(b) and 1(2) (b) of the Firearms (Special Provisions) Act, 1990.

I agree with my learned brother that given the facts of the case wherein the victims of the armed robbery, PW1 and PW2, testified that they could not recognise the Appellant as one out of the five robbers that robbed them on the day in question because he was masked, an identification parade was necessary, beneficial and called for, in the interest of justice. This is more so that PW1 and PW2 were actually the prosecution’s star

witnesses, and did not know the Appellant before that day and so could not be said to have recognized him when masked.

The issue of the identification of an accused person is crucial in criminal proceedings. This is even more so in cases of a capital nature carrying a death sentence, such as this. Its purpose is to, as much as possible, ensure that there is no miscarriage of justice and that the life of an innocent person is not cut short. See Ugwu V. State (2020) LPELR-49375(SC); Okiemute V. State (2016) 15 NWLR (pt. 1535) 297, per Okoro, J.S.C.; Okanlawon V. State (2015) 6-7 SC 115, per Ariwoola, J.S.C.; Adesina V. State (14 NWLR (pt. 1321) 429.

In respect of the confessional statement of the Appellant, Exhibit 3, made in English language, it was made on 05-05-15, that is, eight (8) days before the coming into force of the Administration of Criminal Justice Act (ACJA) on 13-05-15. Thus, the Act (supra), having no retrospective effect, compliance with its provisions relating to the presence of the Appellant’s lawyer(s) and/or other persons when it was made by the Appellant, to wit, Sections 15(4) and 17(2), was not necessary by law – State V. Saidu (2019) LPELR-47397(SC); Naziru Muhammad V. State(2020) LPELR-50867(CA).

Finally, the law in respect of confessional statements subsequently retracted is that, while it can be relied upon by a Court to convict an accused person, there must be some evidence outside the confession which makes it likely that the confession is true -Akinlola V. State (2016) 16 NWLR (pt. 1537) 73; Adesina V. State (2012) 6 SC (pt. III) 114.
In the instant case, as aforesaid, the victims’ evidence was not at all helpful. Since the confessional statements of the co-accused persons, which also required corroboration, could not be used to corroborate the Appellant’s confessional statement, the lower Court could not have proceeded to convict the Appellant on his retracted confessional statement alone – Gwangwan V. State (2011) LPELR-4223(CA).

In consequence of all the above, there was a dearth of evidence upon which to have based the conviction of the Appellant as charged. The conviction and sentence cannot therefore stand.

It is for these reasons and the detailed reasons in the lead Judgment, I allow this Appeal. I abide by the consequential Orders therein.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the judgment just delivered by my learned brother EBIOWEI TOBI, J.C.A. I agree entirely with the reasoning and conclusion therein.

I have nothing more useful to add. I agree that this appeal has merit and should be allowed. I abide by the consequential orders in the lead judgment.

Appearances:

Bob C. O. Ijioma Esq with him, Rabiu Ayuba For Appellant(s)

U. Ibrahim For Respondent(s)