CA/IL/C.45/2013 (2013)

CA/IL/C.45/2013

(2013)LCN/6305(CA)

JUSTICE

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

SEMIU LAWALAppellant(s)

AND

THE STATERespondent(s)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It has long been settled by virtue of the provision of the Evidence Act (Now section 135 of Evidence Act 2011) that where the commission of a crime is directly in issue in a proceedings civil or criminal, it must be proved beyond reasonable doubt by the party alleging the crime (which undoubtedly in criminal trials is the prosecutor). Thus in criminal proceedings except in the recognized instances, the burden remains static on the prosecution to establish the guilt of the accused person by proving all ingredients of the offence beyond reasonable doubt. See Yongo v. C.O.P. (1992) 4 SCNJ 113; Ogundiyan v. State (1991) 4 SCNJ 44; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Okoro v. The State (1988) 12 SC (pt. II) 88; Iko v. The State (2001) 14 NWLR (Pt. 732) 195; State v. Emine (1992) LPELR – 3218(SC). This position of the law is very much in tune with our system of criminal Justice where by virtue of section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), a person who is charged with a criminal offence is presumed to be innocent until he is proved guilty. PER AKEJU, J.C.A.

REQUIREMENT FOR PROOF BEYOND REASONABLE DOUBT

INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): Consequent upon the leave granted on 28/09/2010, the appellant, SEMIU LAWAL was arraigned before the High Court of Kwara State holden at Ilorin on 5/10/2010 on a two count charge of conspiracy and armed robbery as follows:
“COUNT ONE:
That you Semiu Lawal (M), Kazeem (M) Surname unknown and Ayanmo (M) Surname unknown now at large on or about 30th November, 2009 at about 22:00 hrs at Maharaba Junction, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired and agreed to do illegal acts to wit: Rob at gunpoint One Tiamiyu Bello (M) of NNPC Depot Oke Oyi of his Rovers car with Registration No RX 433 AAA valued N680,000.00 and you thereby committed an offence contrary to section 97 of the Penal Code.

That you Semiu Lawal (M) Kazeem (M) Surname unknown and Ayanmo (M) surname unknown both now at large on or about 30th November, 2009 at about 22:00hours at Maharaba Junction, Ilorin, Kwara State within the jurisdiction of this Honourable Court while armed with gum robbed one Tiamiyu Bello (M) of his Rovers Car with Registration Number RX433AAA valued N680,000.00 and you thereby committed an offence contrary to section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.”

The appellant pleaded NOT GUILTY to the two counts and at the trial the prosecution called three witnesses as PW1, PW2 and PW3 while the appellant testified and called one witness in defence of the charge. In the judgment delivered on 21/3/13, the High Court of Kwara State (Now called the trial court) held that the prosecution had established the ingredients of alleged offences and consequently convicted the appellant and sentenced him to death by hanging.
Dissatisfied with the decision of the trial court the appellant filed notice of appeal on 25/4/13 with two grounds of appeal, and before this court the Appellant’s Brief of Argument settled by Olumuyiwa Akinboro Esq. of counsel was filed on 17/6/13 with the issues for determination formulated as follows:
1. Whether from the totality of the evidence before the trial court the prosecution proved its case against the appellant beyond reasonable doubt.

2. Whether the trial court was right in raw to have relied on Exhibits E and F in convicting the Appellant of the Offences charged.
The two issues were adopted by the Respondent in the Respondent’s Brief of Argument settled by Kamaldeen Ajibade Esq. Honourable Attorney General and Commissioner for Justice, Kwara State and filed on 22/7/13.
At the hearing of this appeal, the learned counsel for the parties adopted their respective brief of argument and relied on the argument therein. Appellant’s counsel urged that the appeal be allowed while Respondents’ counsel urged per contra that the appeal be dismissed.
Arguing the first issue, the learned counsel for the appellant submitted that in a criminal charge the standard is proof beyond reasonable doubt and the identity of the persons that participated in the armed robbery must also be proved beyond reasonable doubt. The cases of Aigbadion v. The State (2011) 7 NWLR (pt. 666) 686; Agbo v. The State (2006) 6 NWLR (Pt. 977) 545; Akinyemi v. The State (1999) 6 NWLR (pt. 607) 449 and Alonge v. I.G.P. (1959) SCNLR 516 were cited in support of this submission.
It was further submitted that all the essential elements of the offence must be proved by the prosecution by calling vital witnesses while the court must ensure that the act of the accused person falls within the particulars of the alleged offences, citing Amadi v. The State (1993) 8 NWLR (Pt. 314) 644; Alor v. The State (1997) 14 NWLR (Pt. 504) 511.
The essential ingredients of armed robbery according to the appellant’s counsel have been stated in Attah v. State (2010) 10 NWLR (pt. 1201) 190 and by that decision as well as the Penal Code and Robbery and Firearms Act, where offences of conspiracy and armed robbery have been alleged, the prosecution must proof that; the appellant agreed with two or more persons to commit the offence of armed robbery; there was robbery on the alleged date and some items were stolen; the appellant participated in the robbery and was armed with firearm or an offensive weapon or was in company of someone so armed during the robbery. Counsel contended that in this charge against the appellant the prosecution must establish the following elements;
(1) That the appellant agreed with the persons at large to steal the Rovers car with registration No. RX 433 AAA.
(2) That the appellant with the persons at large on the date and time of the alleged offence dispossessed Tiamiyu Bello of the said Rovers Car at gun point.
(3) That the car was actually stolen by the appellant and the persons at large at the date and at the time stated in the charge.
(4) That it was the appellant and the persons at large that robbed Tiamiyu Bello of his Rovers Car on that date and time while they were armed with guns.
It was contended that from the evidence of the witnesses the prosecution did not proof the identity of the appellant as one of the robbers that robbed Pw3 of his car. While the evidence of PW1 and PW3 contain contradictions as to the number of persons that actually participated in the crime, the question of who identified the appellant as one of the robbers was not answered beyond reasonable doubt as there were contradictions as to the identity of the appellant as one of the robbers. It is not clear from the evidence whether it was the police that identified him to PW3 at the point where the Rovers car had an accident or it was P3 that identified him at the station.
The learned counsel submitted that a trial court should not believe, accept and rely on contradictory evidence, citing Onubogu & Anor v. The State (1974) 9 S.C. 1. It was also submitted that the contradictions materially affected the charge and created doubts the benefits of which the trial court should have given to the accused person by discharging and acquitting him, citing Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455.
Appellants’ counsel contended that from his evidence, the appellant as DW1 raised an alibi which the police failed to investigate. He cited the cases of Balogun v. A. G. Ogun State (2002) 6 NWLR (Pt.763) 512; Yanor v. The State (1965) NMLR 337 and Njovens v. The State (1973) 5 SC 17 and submitted that the failure by the prosecution to controvert the alibi should have been resolved in favour of the appellant. The alibi of the appellant according to counsel is that he participated in the robbery of a Camry car which was unsuccessful and was beaten up before he was handed over to the police, and this was raised timeously, but police did not investigate and this failure means that the case was not proved beyond reasonable doubt therefore the conviction of the appellant should be quashed, citing Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; State v. Obinga (1965) NWLR 172; Ozaki v. State (1990) 1 NWLR (Pt. 124) 92; Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538 and Abdullahi v. State (1995) 9 NWLR (Pt. 417) 115.
The learned counsel submitted that having found that there were two robbery incidents that night, the trial court would have first determined the one in which the appellant participated and the one he was standing trial and convicted for. Still on the identity of the appellant, it was contended that there were inconsistencies in the evidence of PW1 and PW3 that raised grave doubts as to the identity and identification of the appellant as one of the robbers and for this reason the prosecution failed to prove its case beyond reasonable doubt.
It was submitted that the trial court should have resolved the inconsistencies in PW3’s earlier statement to police with that of his evidence in court on the identity of the appellant and the number of persons that participated in the robbery in favour of the appellant by treating the PW3 as an unreliable witness.
The Respondent contended on this issue number one that the case had been proved beyond reasonable doubt, and for what amounts to reasonable doubt, the case of Miller v. Minister of Pension (1947) 2 ALL ER 371; Lori v. The State (1980) 8 – 11 SC 81 and Akalezi v. The State (1993) 2 NWLR (Pt. 273) 1 were cited.
On the offence of conspiracy, the Respondent’s counsel submitted that it is not mandatory for prosecution to establish that conspirators met before carrying out the alleged crime, it is rather by leading evidence from which the court can infer certain criminal acts of the accused person. Conspiracy can be inferred by the court from the criminal acts of the parties including evidence of complicity, so submitted by learned counsel, citing Iwuneve v. The State (2000) 5 NWLR (Pt. 658) 550 and Osondu v. FRN (2000) 12 NWLR (pt. 682) 48.
It was contended that the evidence of the PW1 and PW3 with Exhibit E show that the appellant and other persons now at large conspired to rob the Pw3 on the date alleged in the charge and the trial court rightly inferred an agreement to commit the act of armed robbery from the manner the PW3 was robbed. The case of Onyeye v. The State (2012) ALL FWLR (Pt. 643) 1810 was cited in support of the submission that conspiracy can be inferred from the acts of doing things towards a common goal where there is no direct evidence of an agreement between the accused persons.
To sustain a charge of Armed Robbery under section 1(2) of the Robbery and Firearms Act, learned counsel submitted, the prosecution is expected to establish that there was robbery, which was an armed robbery and the accused person took part in the robbery, citing Okudo v. The State (2011) 3 NWLR (Pt. 1234) 209 and State v. Salawu (2012) All FWLR (Pt. 614) 1. All these ingredients, were established by the prosecution in this case by showing that the PW3 was robbed on 30th November, 2009 which was an armed robbery and that the appellant took part in the robbery.
On the contradiction in the evidence of PW3 raised by the appellant, the respondent submitted that summary of witness statements annexed with proof of evidence cannot be used to contradict the oral testimony of witness on oath, citing Theophilus v. The State (1996) 1 SCNJ 79. Also on the alleged contradiction in the evidence of the prosecution regarding the number of the robbers, it was submitted that this could at best be regarded as discrepancy rather than contradiction in evidence, citing Ikuepenikan v. The State (2011) 1 NWLR (Pt. 1229) 449.
Again on the argument as to the identity or identification of the appellant which the appellant’s counsel said was based on conflicting evidence of prosecution witnesses, the respondent submitted that identification in this case where the appellant did not deny committing the offence but only contended that he was forced by his cohorts to partake in the commission, will not be of any issue.
It was contended that the argument of the appellant’s counsel that the appellant was arrested while attempting to rob a white Camry Car by a mob does not constitute an alibi to be investigated, it rather confirms that there was robbery, which is an ingredient of the offence of armed robbery charged. It was the contention of the respondent that the identity of the appellant and his participation at the robbery of PW3 was established by the prosecution beyond reasonable doubt, and the conclusion of the trial court was correct.
On the second issue, which is whether the trial court was right in admitting Exhibits E and F and relying on same in convicting the appellant, the appellant’s counsel contended that when the respondent tendered Exhibit E through the PW2, the appellant objected to its admissibility on the ground that it was not voluntarily made and it contains extraneous things while the Yoruba version thereof was not attached to the English version sought to be tendered.
The learned counsel contended that the police did not comply with section 29 of the Police Act in procuring Exhibit E and a perusal of the exhibit shows that it was obtained as a result of a question and answer session because it started with the biological history of the appellant. It was submitted that the court had deprecated the procedure of question and answer by the police in the case of Namsoh v. The State (1993) 5 NWLR (Pt. 292) 129 and same is contrary to order 7(1) of the Criminal Procedure (Statement to Police Officers) Rules 1963.
It was contended also that the cautionary words and the main statement were recorded in English Language while the Yoruba Version of the Statement was not put in evidence with the English translation and the accuracy of the statement was thereby rendered uncertain, citing Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641 and Ajidahun v. The State (1991) 9 NWLR (Pt. 213) 33.
The learned counsel contended that the trial court did not properly evaluate the evidence of the appellant at the trial within trial regarding the torture that was metted to him. It was submitted that a confessional statement induced by threat or torture is inadmissible in evidence, citing Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92.
It was contended that the appellant had, in Exhibit E denied committing the offence charged and Exhibit E does not qualify as a confessional statement.
Contrary to the position taken by the appellant, the respondent contended that the argument of the appellant has no evidential backing and therefore goes to no issue. The respondent contended that by virtue of section 31 of the Evidence Act, 2011, a confession that is relevant does not become irrelevant merely because of the circumstances under which it was made. It was submitted that the case of Namsoh v. The State (supra) cited by the appellant was decided under the abrogated Evidence Act of 2004.
The learned counsel cited the case of Brownson Etuk Udo v. The Queen (1964) ALL NLR 21 to submit that the recording of a statement in a language other than the one spoken by the accused person does not render the statement inadmissible.
It was contended that there was evidence led by the prosecution to sustain the conviction outside the confession in Exhibit E but the appellant on oath merely confirmed the content of exhibit E.
I will resolve the two issues seriatim.
It has long been settled by virtue of the provision of the Evidence Act (Now section 135 of Evidence Act 2011) that where the commission of a crime is directly in issue in a proceedings civil or criminal, it must be proved beyond reasonable doubt by the party alleging the crime (which undoubtedly in criminal trials is the prosecutor). Thus in criminal proceedings except in the recognized instances, the burden remains static on the prosecution to establish the guilt of the accused person by proving all ingredients of the offence beyond reasonable doubt. See Yongo v. C.O.P. (1992) 4 SCNJ 113; Ogundiyan v. State (1991) 4 SCNJ 44; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Okoro v. The State (1988) 12 SC (pt. II) 88; Iko v. The State (2001) 14 NWLR (Pt. 732) 195; State v. Emine (1992) LPELR – 3218(SC). This position of the law is very much in tune with our system of criminal Justice where by virtue of section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), a person who is charged with a criminal offence is presumed to be innocent until he is proved guilty.
Where therefore the prosecution has failed to prove some issues or material ingredient of the alleged offence or has left some doubts (reasonable) in the mind of the court, the case has not been proved and the accused person takes the benefit of that doubt.

It is however well recognised that the requirement of proof beyond reasonable doubt is not what the prosecutor cannot attain as it does not require the prosecutor to proof beyond every shadow of doubt. The case of Miller v. Minister of Pension (1947) 2 ALL E.R. 371 remains quite apposite and illustrative on this principle. See also Moses Jua v. The State (2010) All FWLR (Pt. 521) 1427. Bassey v. The State (2012) All FWLR (Pt. 633) 1816. In Chukwuma v. FRN (2011) vol. 5 (Pt. II) MJSC 1, this requirement of proof beyond reasonable doubt was explained by the Supreme Court at page 19 per Muhammed, JSC as follows:
“The prosecution does not require any magic wand in order to attain to it’s proof to be “beyond reasonable doubt”. All the prosecution is required to do simply is to put forward to the court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence. That in effect is the interpretation given by our superior courts to the common law origin phrase of proof beyond reasonable doubt which has been embellished in section 138 of the Evidence Act Cap. 112 LFN, 1990 (Cap E 14 LFN, 2004). See the cases Fatoyinbo v. Attorney General of Western Nigeria (1966) WRNLR 4; Okeke v. The State (1995) 4 NWLR (Pt. 392) 676; Akinyemi v. The State (1999) 6 NWLR (Pt. 607) 449 at Pg. 463 – 464.”
See also Bakare v. The State (1987) 3 SCNJ 9.
In the instant case, the appellant was charged with the commission of the offences of conspiracy and armed robbery in that he conspired with some persons now at large to commit armed robbery in Ilorin on or about 30th November, 2009 at about 22:00 hours.
Conspiracy means an agreement between two or more persons to commonly, or in conjunction with each other, effect an unlawful act or to do a lawful act in an unlawful manner and if inconsequence or in furtherance of the agreement they carry out the unlawful act, each of the conspirators is deemed to have committed the offence of conspiracy not withstanding that the substantive offence was not proved to have been committed by all. See Haruna v. The State (1972) 8/9 SC 174; Oyediran v. The Republic (1967) NWLR 122; Majekodunmi v. The Queen 14 WACA 64; State v. Oladimeji 15 NSCQR 173; Osetoba v. State (2012) All FWLR (Pt. 649) 1021; Njovens v. State (1973) NNLR 76.
The offence of conspiracy is distinct and separate from the actual commission of the substantive offence and it is complete as soon as two or more persons have agreed to commit unlawful act. See Balogun v. Attorney General, Ogun State (2002) 2 SCNJ 196; R. v. Adebajo (1935) 2 WACA 315; Ikemson v. The State (1989) 6 SCNJ (pt. 1) 54.

According to section 2(a) and (b) of Robbery and Firearms (special provisions) Act, the offence of armed robbery is committed where a person commits the offence of robbery while armed with any firearm or offensive weapon or is in company with any person so armed. To secure conviction in a charge of armed robbery therefore, it must be proved that there was robbery or series thereof which was, or each of which was in fact armed robbery and that the accused was the robber or took part therein. See Alabi v. State (1993) 7 NWLR (pt. 307) 511; Olayinka v. State (2007) 4 SC (Pt. 1) 210; Bello v. State (2007) 10 NWLR (pt. 1043) 564; Okosi v. State (1989) 1 NWLR (Pt. 100) 642.
After stating the ingredients of the offence of conspiracy and armed robbery with which the appellant was charged, the learned trial judge reviewed the evidence, analysed and evaluated same before applying them to the charge whereupon he found that the case had been proved by the prosecution. The learned trial judge then found that the appellant was one of the persons that committed armed robbery as in the charge and drew inference from the facts of the case to find the appellant also guilty of the offence of conspiracy. The appellant was therefore convicted and sentenced to death as provided by section 273 of the Criminal Procedure Code.

It is clear from the record of appeal that at the trial, the prosecution called three witnesses who testified as the PW1, PW2 and PW3 while the appellant testified in his own defence and called one other witness.

The evidence of the PW1 is on pages 38-40 of the record. He is Ogunleye Dayo, Assistant Superintendent of Police attached to “A” Division Police Headquarters, Ilorin as at 30/11/09, as head of patrol and guard. The PW1 said he led his team on patrol along Muhammed Bello Way, Ilorin and saw a Rovers Car Driven along the way in a dangerous manner and a man was hanging by the door of the vehicle. On his instruction the driver of his own patrol vehicle pursued the Rovers Car when the driver of that car noticed that the patrol team pursuing the car he increased the speed. At Marahaba Junction, the man hanging by the car’s door side fell off and the patrol team stopped and carried the man inside their own vehicle while the chase continued and the Rovers car eventually hit a pavement and stopped, but the occupants took to their heels.

The Rovers car was searched and a locally made pistol was found therein, the car was towed to the “A” Divisional Police Headquarters, Ilorin where the appellant was also taken to, and where one Tijani Bello came to report that the Rovers Car was snatched from him.

Opaluwa Yakubu, a police corporal with Force No. 358413 attached to State Anti Robbery Squad, (SARS) Ilorin as an exhibit keeper and investigator was the PW2, He took over the case from the “A” Divisional Police Headquarters Ilorin that transferred it with the appellant, a locally made pistol and a Rovers Car numbered Lagos RX 433AAA which was released to one Tijjani Bello on bond. He tendered the locally made pistol and the Bond as exhibits A and B respectively. Three photographs of the appellant taken with the Rovers car and the pistol were also tendered by this witness and admitted as exhibits C, C1 and C2 while the negative was admitted as exhibit D. The statement which the appellant said he obtained from the PW2 generated an objection that resulted in a trial within trial before it was admitted as exhibit E.

Timothy O. Bello who worked with Okesadi Petroleum was the PW3 and in his testimony on pages 69 – 77 of the record, he said he saw the appellant and two other persons on 30/11/09 at about 10:00pm as he was approaching Maraba Junction, Ilorin; he saw the appellant and two other persons who came near him. The appellant pointed a gun at him and asked him to come out of his car which he did. The appellant and the other persons entered the car and left with it. He (PW3) after a fruitless chase of the vehicle up to the post office along Muritala Muhammed way, went to the “A” Divisional Headquarters in Ilorin to report the incident, there he saw the appellant behind the counter and immediately identified him as the person that pointed gun at him. The vehicle was later released to him.
The court then visited the scene of the crime.

In the defence, the appellant in his testimony as the DW1 on pages 78, 79A and 79B of the record admitted that he came to Ilorin from Lagos with the two persons now at large Kazeem and Ayanmo on agreement that he was to drive a car for them from Ilorin to Lagos on payment of N12,000.00 to him. At Ilorin the two persons at large informed him that they were there to snatch vehicle and showed him two guns in their possession. In the evening of the alleged date, he (appellant) went with these persons now at large to rob with the guns with them but when the heat turned against them, the two persons now at large took to their heels. He said the first car they stopped was a Camry car but the operation became unsuccessful and when the two persons now at large took to their heels, but the mod descended on him and was only rescued by the police patrol team that took him to “A” Divisional Police Headquarters, Ilorin, He admitted making statement to police.
The DW2 Maruf Lawal did not give any material evidence in the case.

On issue number one in this appear which is that the prosecution did not prove the case against the appellant as required by law, the appellant’s counsel had contended that; (i) the identity of the appellant as one of the persons that committed the robbery alleged was not proved in that the PW1 and PW3 were not ad idem as to the number of the robbers and it is not clear which of the two witnesses identified the appellant, (ii) the appellant raised an alibi that was not investigated by the police and which should have resulted in his discharge and acquittal.

In agree with the learned Attorney General as also found by the trial judge that the statement of the PW3 in the proof of evidence cannot be the basis for contradicting his evidence on oath.

The evidence before the trial court on the identity or identification of the appellant was direct, simple and indeed quite straight forward. The PW3 saw him at the point of the robbery when the appellant pointed a gun at him and with two other persons snatched his car and drove it away. At the first opportunity when he saw the appellant thereafter at the police station, the PW3 identified appellant as the very person that he saw among the robbers. Again in the course of attempting to escape with the car, the PW1 saw the car and upon a hot chase, the appellant dropped off the vehicle and was picked by the PW1 who took him to the police station in his patrol van where the PW3 saw him and identified him.

Identification simply means being identified. See Adisa v. The State (1991) 1 NWLR (pt. 168) 490. In The State v. Aibamgbee & Anor (1988) 7 SCNJ (Pt. 1) 128 at 162, Oputa, JSC defined identification as “a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of these”. It has been held in Archibong v. State (2006) All FWLR (Pt. 323) 1747 that the question of the proper identification of an accused is one of fact.

From the facts and circumstances of the instant case, both the PW1 and PW3 are in good position to identify the appellant as one of the robbers that snatched the PW3’s Rovers Car and they both identified him properly at the first opportunity. In my humble view the argument of the learned counsel as to the number of the robbers (3 or 4) or who between the PW1 and PW3 identified the appellant is not an issue here. The prosecution indeed established the identity of the appellant beyond reasonable doubt.

On the issue of alibi of the appellant, the preponderance of judicial views is that an accused person who puts up an alibi as a defence is simply saying that he was somewhere other than the scene of the alleged crime at the time it was committed and so he could not possibly have taken part in it. See Sowemiwo v. The State (2004) 11 NWLR (Pt. 885) 515; Aiguoreghian v. The State (2004) 3 NWLR (pt. 860) 367; Ganchi & Ors. v. The State (1965) NMLR 1.

The alibi allegedly put up by the appellant in this case is that he was rather involved in the robbery of a Camry Car which was foiled and was taken to the police station by a police patrol team. No further details of the robbery of the Camry Car was given even when the court went on the inspection of the locus where the robbery of PW3’s car took place.

The prosecution no doubt has the burden to investigate and disprove an alibi that has been properly raised by an accused person it is however not in all cases that the failure to check an alibi will be fatal to the case of the prosecution. See Olaiya v. State (2010) 3 NWLR (pt. 118) 423. Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92; Agu v. The State (1985) 2 NSCC 1197.

The prosecution in this case has by credible evidence of the PW1 and PW3 linked the appellant with the commission of the offence of armed robbery and has thereby demolished the alibi (if any) raised by the appellant.
From the foregoing, the prosecution has proved beyond reasonable doubt that there was robbery on 30/11/09 which was an armed robbery and that the appellant was one of the robbers and has thus proved the ingredients of armed robbery as in the charge. See Abiodun v. The State (2013) 3-4 MJSC (Pt. 1) 163. The trial court has also rightly inferred the commission of conspiracy by the appellant from the established facts and circumstances of the case.

I agree with the holding of the learned trial judge that the case against the appellant was proved beyond reasonable doubt.
Issue one is resolved against the appellant.

The second issue is whether the trial court was right in admitting Exhibits E and F and relying on same to convict the appellant.

To begin with, a confession as defined in section 28 of the Evidence Act 2011 is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed the crime. By section 20 of the same Evidence Act, 2011, an admission is a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact. Section 29 of the Evidence Act 2011 forbids the court from admitting any statement by an accused person which has been made involuntary. Like all other issues in the trial (except for the recognized instances), the prosecution must proof beyond reasonable doubt that a statement made by the accused passes the test of voluntaries before such a statement can be admissible in Court. See Nwosu v. State (1986) 4 NWLR (Pt. 186) 428; Ebot v. State (1993) 4 NWLR (Pt. 240) 644; Saidu v. State (1982) NSCC (Vol. 13) 70.

At the point of tendering the statement the appellant made to police, there was objection to its admissibility on the ground that the statement was not voluntarily made based on some grounds. In the bid to ascertain the voluntariness of the statement and its admissibility, the trial judge conducted a trial within trial at which the prosecutor called two witnesses as PW1 and PW2 while the appellant testified in defence. After evaluating the evidence of the witnesses, the learned trial judge found on pages 66-67 of the record as follows:
“I disbelieve evidence of the accused and I reject the submissions of his counsel that the extra judicial statement of the accused sought to be tendered in evidence was not made voluntarily. I am satisfied that the contents of the statement which shows among other things the background history of the accused that the statement was volunteered by the accused.”

Having satisfied himself of the voluntariness of the statement, the learned trial judge admitted it as exhibit E in the proceedings. The admissibility of exhibit E was therefore based on the evaluation of evidence and findings of fact made by the learned trial judge, which involved credibility of witnesses and not assessment of documentary evidence. It is settled that evaluation of evidence and findings of fact are primarily within the domain of the trial court that heard the evidence and an appellate court will not readily make a practice of interfering with such findings except where it is established that there was no evaluation or the findings are perverse. See Bakare v. The State (1987) 3 SC 1; Okonji v. The State (1987) 3 SC 175; Oshevire Ltd v. Tripoli Motors (1997) 5 NWLR (Pt. 503) 1.

In Abiodun v. The State (2013) 3-4 MJSC (Pt. 1) 163 at 175-176, Onnoghen, JSC put the position thus:
“I hold the view that a decision reached by a trial court/tribunal in a trial within trial proceeding to determine the issue as to whether a confessional statement is made voluntary or not, such as the instant issue under discussion, the evaluation of the court involved is based on the credibility of the witnesses who testified at the trial. The Court/tribunal is called upon to resolve the matter by believing one party as against the other, after evaluation of the evidence given by the witness. The evaluation in such a case is not based on documentary evidence which would have clothed an appellate court… with the vires to reevaluate the evidence.”

Since the learned trial judge followed the due process of law in admitting exhibit E, there can be no question of its admissibility here, more so that there has not been any appeal in that regard.

I do not find where the learned trial judge based the appellant’s conviction on exhibit F. It is now beyond per adventure that it is lawful for a court to convict an accused person based solely on his extra judicial confession which is voluntary, unequivocal and in line with the evidence before the court. See Igri v. The State (2012) 6 – 7 MJSC (Pt. III) 107. Alarape v. State (2001) 14 WRN 1; Idowu v. State (2000) 7 SC (Pt. 11) 50. It is however desirable to have some evidence outside the confession that makes it probable that the confession is true; see Dibie v. State (2007) 9 NWLR (pt. 1038) 30; Solola v. State (2005) 11 NWLR (Pt. 937) 460.

I have had a calm look at exhibit E and it is consistent with the fact that the appellant was in Ilorin on 30/11/09 in the company of Kazeem and Ayanmo now at large and there was armed robbery in which he participated. Being a confessional statement, the learned trial judge properly relied on it to convict the appellant. In my view exhibit B was properly admitted and relied upon by the trial court.
This issue is also resolved against the appellant.

On the whole, and having resolved the two issues against the appellant, the appeal is devoid of any merit whatsoever and it is accordingly dismissed.

The judgment of the High Court of Kwara State, Ilorin Division delivered on 5/10/2010 by Hon. Justice I. A. Yusuf is affirmed with the verdict of guilt and death sentence that the appellant, Semiu Lawal be hanged by the neck until he is dead. May God have mercy on your soul.

HUSSEIN MUKHTAR, J.C.A.: My learned brother Isaiah Olufemi Akeju, JCA has afforded me the opportunity to preview his lead judgment just rendered. I am in full agreement with the meticulous reasoning therein and his conclusion that the appeal is bereft of merit and is only deserving of dismissal.

In a case of armed robbery, the Respondent was required to prove the following ingredients.
(i) That there was robbery, and
(ii) That the robbery was an armed one, and
(iii) That the accused/appellant was one of the armed robbers or the robber. See Martins v. The State (1997) 1 NWLR (Pt. 481) 355; Offir v. State (1993) 4 NWLR (Pt. 290) 675.

The Respondent had lead credible evidence to establish all the ingredients of the offence of armed robbery against the Appellant at the trial. The court below therefore rightly convicted and sentenced the Appellant.

I similarly dismiss the appeal for lacking in merit and adopt the consequential orders made in the lead judgment.

UCHECHUKWU ONYEMENAM, J.C.A.: I read in advance the lead judgment just delivered by my learned brother ISAIAH OLUFEMI AKEJU, JCA.

I agree with the well reasoned judgment and have nothing to add but to say that I also affirm the judgment of the High Court of Kwara State, Ilorin Division delivered on 5th October, 2010 in SUIT No. KWS/43C/2010. I abide by the verdict and sentence.
May God have mercy on his soul.
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Appearances

Olumuyiwa Akinboro Esq.For Appellant

AND

Respondent not represented by counsel at the hearingFor Respondent