DAHIRU SANUSI v. THE STATE (2019)

DAHIRU SANUSI v. THE STATE

(2019)LCN/13651(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/MK/210/2018

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

DAHIRU SANUSI Appellant(s)

AND

THE STATE Respondent(s)

RATIO

ELEMENTS TO ESTABLISH THE GUILT OF AN ACCUSED PERSON

In order to establish the guilt of an accused person, the prosecution must establish elements of the offence by three main methods:
1. Direct evidence of the victim or an eye witness;
2. Circumstantial evidence:
3. His direct, positive and voluntary confessional statement; Onyenye v State (2012) LPELR- 7866 (SC). Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, (2007) LPELR-1894 (SC). PER OTISI, J.C.A.

THE CRIMINAL OFFENCE OF ARMED ROBBERY

The Appellant was charged with criminal conspiracy and armed robbery punishable under Sections 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 515 Laws of the Federation of Nigeria, 2010. Section 1 of the Robbery and Firearms (Special Provisions) Act provides as follows:-
1. (i) any person who commits the offence or robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
2. If –
(a) any offender mentioned in sub-section (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
Section 6 thereof provides:
6. Any Person who-
(a) Aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3, and 4 of this Act; or
(b) Conspires with any person to commit such an offence; or
(c) Supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
It is now to see if elements of the offence were proved by the prosecution by the accepted methods. PER OTISI, J.C.A.

THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY

Conspiracy.
Generally, conspiracy is an agreement between two or more persons to plan an unlawful act or carry out a legal act through illegal means. It is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with intent to achieve the objective of the agreement; State v Salawu (2011) LPELR-8252 (SC); Adeleke v State (2013) LPELR-20971 (SC); Bouwor v State (2016) LPELR-26054 (SC); Kayode v State (2016) LPELR-40028 (SC); Oduneye v State (2001) LPELR-2245 (SC); Okoh v. The State (2014) LPELR-22589 (SC); Adepoju v. The State (2018) LPELR-44355 (SC).
Black?s Law Dictionary, Ninth Edition, page 351, defines conspiracy as:
An agreement between two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement?s objective, and?action or conduct that furthers the agreement; a combination for an unlawful purpose.
Ingredients of the offence of criminal conspiracy, which the prosecution must establish are:
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.

A charge of conspiracy is a totally separate offence from the completed offence. Thus, the offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted; Taiye v. State (2018) LPELR-44466(SC).PER OTISI, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

As is the case in all criminal trials, the burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence. The charge can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence; Orisa v State (2018) LPELR-43896(SC). The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra). Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC in Kayode v State (supra) at page 67 of the E-Report commented:
?It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.?
?
The Appellant herein was alleged to have conspired with the other accused persons to commit the offence of armed robbery. His extra judicial statement, Exhibit 4, and, the extra judicial statements of the 1st and 2nd accused persons, Exhibits 2 and 3, were all admitted in evidence after a trial-within-trial was conducted. I note that there was no ground of appeal challenging the ruling of the lower Court on the trial-within-trial. Nevertheless, the Appellant?s Counsel has emphasized the fact that the Appellant’s statement was retracted. PER OTISI, J.C.A.

DEFINITION OF A “CONFESSION”

A confession is “an admission made at any time by a man charged with a crime stating or suggesting that he committed the crime”; Ubierho v. The State (2005) LPELR-3283(SC), (2005) 2 S.C. (pt 1) 18. A man can be convicted on his own confession alone, that is made freely and voluntarily; and if it is consistent with other facts which have been ascertained. The law is quite settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying “…the highest place of authenticity when it comes to proving beyond reasonable doubt.”; Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303. See also Emeka v. State (2001) LPELR-1125(SC); (2001) 14 NWLR (PT. 734) 666; Akpan v. State (2008) 4-5 S. C. (PT. II) 1; Dawa v. State (1980) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (PT 11) 1; Galadima v. State (2012) 12 MJSC (PT 111) 190; Fatai v. State (2013) LPELR-20182(SC). Danjuma v. The State (2019) LPELR-47037(SC). It is however, desirable to have outside the confessional statement some evidence however slight, of the circumstances which made it probable that the confession was true; Emeka v. State (supra); Akpan v. State (supra); Galadima v. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Tests to be applied or followed by the trial Court in determining the issue of weight to be attached to confessional statements were laid down in R v. Sykes (1913) 8 Cr. App R 233 and approved in Kanu v. R (1962/55) 14 WACA 30. By these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved? PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The High Court of Benue State sitting at Makurdi, Coram Igoche, C.J. on January 31, 2017 convicted the Appellant for the offences of Criminal Conspiracy and Armed Robbery, contrary to Sections 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act CAP. 515, Laws of the Federation, 2010, and sentenced him to death.

?The case of the prosecution was that on 1/4/2013 at McCarthy Stadium, Wadata Makurdi, the Appellant, as 3rd accused person, alongside two other persons as 1st and 2nd accused persons conspired and robbed at gun point one Onah Amos of his Golf 3 car with registration No. BR 431 KMC. The Appellant, the 1st and 2nd accused persons were arrested at North Bank, Makurdi in the said vehicle on the highway vehicle heading towards Lafia. The Appellant pleaded not guilty to the two count charge culminating in a full trial. In proof of her case, the prosecution fielded three witnesses and tendered four Exhibits. In his defence, the Appellant retracted and challenged the admissibility of his extra-judicial statement. Upon conducting a trial-within-trial, the

lower Court in its ruling, admitted the said statement in evidence as Exhibit 4. At the close of the prosecution’s case, the Appellant and his co-accused persons made a no-case submission, which the lower Court dismissed and ordered the Appellant and the other accused persons to enter their defence. The Appellant testified for himself as DW5 and called one other witness who testified as DW6. At the conclusion of hearing, the lower Court discharged and acquitted the 1st accused person but convicted the Appellant and the 2nd accused person for conspiracy to commit armed robbery and armed robbery, and, sentenced them to death. Aggrieved by the judgment of the lower Court, the Appellant lodged the instant appeal by Notice of Appeal filed on 24/4/2017. An Amended Notice of Appeal was filed on 21/1/2019 but deemed properly filed and served on 21/5/2019, on three grounds of appeal.
?
At the hearing of the appeal on 21/5/2019, G.C. Ugochukwu, Esq. adopted the Appellant?s Brief filed on 21/1/2019 but deemed on 21/5/2019. Mrs. Aver Shima, Principal State Counsel 1, Ministry of Justice, Benue State adopted the Respondent?s Brief filed on

6/3/2019 but deemed on 21/5/2019. The Appellant?s Reply Brief filed on 3/4/2019 but deemed on 21/5/2019 was also adopted by Mr. Ugochukwu.

In the Appellant?s Brief, the Appellant distilled the following two issues for determination of this appeal:
i. Whether the Prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.
ii. Whether the lower Court properly evaluated the evidence in this case to warrant the conviction of the Appellant and sentencing him to death for the offences or conspiracy to commit armed robbery and armed robbery

The Respondent adopted the two issues as framed by the Appellant but subsumed Issue 1 into Issue 2 and argued both together. The two issues are entwined and would be considered together.

Issues 1 and 2
Learned Counsel for the Appellants argued that the prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt against the Appellant. On what would amount to conspiracy to commit a crime, Counsel cited and relied on Haruna v. State (1972) 8-9 SC 174;

Osondu v. Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 483 to submit that conspiracy is an agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective. It is a separate offence from the crime that is the object of the conspiracy. Conspiracy is mainly proved by circumstantial evidence and inference from certain proved acts, usually by evidence of subsequent conduct of the accused towards the commission of the substantial offence, citing Babarinde & Ors v. State (2013) LPELR-21896 (SC). Circumstantial evidence in proof of conspiracy must conclusively point to the guilt of the accused and be such as to leave no reasonable grounds for speculation that some other persons other than the accused committed the offence. It was submitted, relying on Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4 and Kalu v. The State (1993) 6 NWLR (Pt. 300) 385, that it is only when this is done that the onus shifts to the accused to rebut the presumption of guilt. The role played by the accused in the act that constituted the offence of criminal conspiracy should form part of the particulars of the

offence charged and the part of the agreement acted by the appellant will be shown in the charge; relying on Clark v. State (1986) 4 NWLR (Pt. 35) 381; State v. Osoba (2004) 21 WRN 122; Oduneye v. The State (2001) 1 SC (Part I) 1 at 6-7. The Appellant also cited and relied on the decisions in Yakubu v. State (2014) 8 NWLR (Pt. 1408) 111 at 123; Al-Mustapha v. State (2013) LPELR- 20995 (CA) on elements required to prove a charge of conspiracy. It was submitted that, having regard to the evidence adduced, the charge was not proved. The prosecution had asserted that a phone call received by the passenger who boarded the vehicle of PW1, the Complainant, was made by the accused persons. When the Appellant and the other accused persons were arrested, their telephones were seized from them by the police. However, apart from the seizure of their phones by the police, no other step was taken to investigate whether a telephone call was in fact made, and, if made, by the Appellant and to whom. All the factual lacunae in the evidence that ought to have been filled by forensic investigation were lacking. The case of Ahmed v. Nigerian Navy (2017) LPELR-44025 (CA) was cited

and relied on. It was submitted that to the extent that no evidence of the call data record was given, despite the seizure of the phones, it was safe to assume that evidence of the call data record of the Appellant’s phone would have been inimical to the case of the prosecution. The Court was urged to so hold. It was further submitted that the prosecution could also have ascertained if the alleged phone call was actually made by the Appellant or any of the accused persons was by documentary evidence under the computer generated evidence procedure as provided in Section 84 of the Evidence Act, 2011 by approaching the Telecommunication Companies where the phone lines of the accused persons were registered to obtain their call logs. This would eliminate speculation but prove that the call was actually made by the Appellant or any of the accused persons. The evidence to prove that the Appellant or any of the accused persons actually made the call to the person or passenger who picked the PW1 from the T.C. Wine Bar was available but not produced. The Court was urged to invoke the provisions of Section 167(d) of the Evidence Act, 2011 to hold that the evidence

was available but not produced. On the applicability of the said provisions, decisions relied on included: SPDC (Nig.) Ltd v Tiebo (1996) 4 NWLR (pt 445) 657; UBA Ltd v Ibhafidon (1994) 1 NWLR (Pt. 318) 90 at 119; Ogwuru v. Co-op Bank of Nig Ltd. (1994) 8 NWLR (Pt. 365) 685; Jallco Ltd. v. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534. Relying further on the said provisions of Section 167(d) of the Evidence Act, 2011 it was submitted that where the prosecution fails to produce, or suppresses useful evidence pivotal to the determination of the guilt or the innocence of the accused, the Court is entitled to make the presumption that if the evidence were produced, it would have been adverse to the case of the prosecution. Since the charge of conspiracy in this matter rested on the allegation of the phone call received by the passenger who boarded PW1?s vehicle from the T.C. Wine Bar, failure to prove that the said phone call was made by the Appellant amounted to failure of the prosecution to establish conspiracy against the Appellant beyond reasonable doubt. It was also argued that, contrary to the holding of the trial Judge, there was

no evidence that the persons who snatched the car from the PW1 and drove away with it were the same persons as the accused persons, particularly the Appellant. PW1 had not identified any of the accused persons, including the Appellant. Relying on Section 126 of the Evidence Act, 2011, it was submitted that where the issue of identity of an accused person has been put in issue, there must be eye witness evidence that positively identified the accused person. The decisions in Abu Isah v. The State (2008) LPELR-1542(SC); Olalekan v. State (2001) 18 NWLR (Pt. 746) 793 at 823 were cited and relied on. The Court was urged to hold that the offence of conspiracy to commit armed robbery was not proved against the Appellant.

It was further submitted that the offence of armed robbery as defined in Section 1 the Robbery and Firearms (Special Provisions) Act, CAP. R11, LFN, 2004, was also not proved. The elements of the offence must be proved in accordance with Section 138 (1) of the Evidence Act beyond reasonable doubt. Authorities relied on included: Smart v. State (2016) LPELR-40827(SC); Bozin v. The State (1985) 2 NWLR (Pt. 8) 465; Alabi v. The State (1993) 7 NWLR

(Pt. 307) 511; Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561. Relying on these authorities and on the evidence proffered by the Respondent, it was argued that the elements of the offence were not established. The Appellant had also put forward the defence of alibi, which the lower Court rejected because it was not raised in his statement to the police at the earliest opportunity. It was argued however, that in view of the testimony of the Appellant, the police rejected the Appellant?s account and did not give him opportunity to tell his own story till his testimony at the trial. The burden of proving offences as charged beyond reasonable doubt was always on the prosecution, but that the lower Court had shifted the burden of proof to the Appellant to explain his innocence. That the lower Court unjustifiably relied on Exhibit 4, which was retracted, to convict the Appellant of armed robbery. The evidence on record did not prove the offence as charged against the Appellant. It was also argued that, even if found that the Appellant participated in the event, the evidence adduced did not prove there was armed robbery, the incident did not qualify as

armed robbery but robbery. Reliance was placed on a number of authorities, including Pius v. State (2015) 7 NWLR (Pt. 1459) 628. Appellant?s Counsel also highlighted discrepancies in the evidence adduced and argued that while minor inaccuracies or discrepancies not going to the root of the case of the parties may not go to any issue, inconsistencies or contradictions touching on the substance of the case of the prosecution against an accused person are material. It would raise reasonable doubt that ought to be resolved in favour of the accused person; relying inter alia, on Madu v. The State (2012) LPELR 7867 (SC); Galadima v. State (2017) LPELR-41909 (SC). The Court was urged to hold that the circumstances of the matter did not fall within the realm of armed robbery, as provided in Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.
?
It was further submitted that the learned trial Judge failed to properly evaluate the evidence adduced and thereby wrongly convicted and sentenced the Appellant to death for the offences of conspiracy to commit armed robbery and armed robbery. On the importance of proper evaluation of evidence, the

decisions relied on included, Onisaodu & Anor v. Elewuju & Anor (2006) LPELR-2687(SC); Onwuka v. Ediala (1989) 1 NWLR (PT 96) 182 at 208-209. The trial Court had convicted the Appellant on the basis of his retracted confessional statement. The decisions in Kim v. The State (1992) 4 SCNJ 81; Okoh v. The State (2014) 8 NWLR (Pt. 1410) 502 at 526 were relied on to advance circumstances under which a confessional statement may be relied on to sustain a conviction, especially where the same is denied or retracted. It was submitted that the learned trial Judge was wrong to have made references to retracted statements of the other accused persons to test the truth of the Appellant’s alleged confessional statement. A statement made by an accused person to the Police may amount to an admission of the offence for which he is charged but, the statement and facts admitted therein are admissible against the maker of the statement only and not against a co-accused, citing Enitan v. The State (1986) 3 NWLR (PT 30) 604; Badmus v C.O.P. (1942) 12 WACA 432; The State v. Gwangwan (2015) LPELR-24837 (SC). In line with this established principle, reliance by the learned

trial Judge on statements of the co-accused persons as evidence against the Appellant was unsustainable. Further, it was submitted that the confessional statement alleged to have been made by the Appellant did not pass the established tests and ought not to have been the basis of a conviction. Aside from the retracted statement, Exhibit 4, the evidence in support of the prosecution?s case was merely circumstantial. On the caution on convicting an accused person on circumstantial evidence, the case of Adie v The State (1980) All NLR 39, (1980) LPELR-176 (SC) was cited and relied on. It was argued that there was manifest reasonable doubt and absence of any credible or reliable evidence to sustain a conviction or the charges. The Court was urged to reject the findings of the lower Court in circumstances of this case. The Respondent having failed to prove the charges beyond reasonable doubt, the Court was urged to allow the appeal, set aside the decision of the lower Court and acquit the Appellant of the offences as charged.
?
For the Respondent, Mrs. Shima, learned Principal State Counsel argued that the prosecution had proved beyond reasonable doubt

every ingredient of the offences of Criminal Conspiracy and Armed Robbery punishable with death under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act CAP. 515 Laws of the Federation 2010 and the Appellant was rightly found guilty, convicted and sentenced accordingly. She relied on the evidence adduced and submitted that Exhibit 4, the Appellant?s statement, was admitted after a trial within trial and relied on by Respondent without further objection at the trial Court. The evidence of PW1, the victim of the armed robbery and that of PW3 who in conjunction with his team member arrested Appellant and his gang fleeing with the vehicle, formed sufficient corroboration to Exhibit 4. It was further submitted that there were no discrepancies in the case of the Respondent at the trial Court to make their case unbelievable or that it occasioned any miscarriage of justice. Rather, that the offences were proved beyond reasonable doubt. The Court was urged to dismiss the appeal.
?
In the Reply Brief, Appellant?s Counsel rehashed his arguments already canvassed in the Appellant?s Brief and once more urged the Court to

allow the appeal.

Resolution
It is trite that in our criminal jurisprudence, the burden of proof lies on the prosecution and the standard of such proof is proof beyond reasonable doubt, Section 139 of the Evidence Act, 2011, See also Nasiru v. The State (1999) LPELR-1945 (SC); Ukpong v. The State (2019) LPELR-46427 (SC). It is also well settled that the expression beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035 (SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller V. Minister of Pensions 1947 2 All E.R. 372 at 373 and cited with approval in Agbo v. State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242 (SC) at page 48 of the E-Report, was as follows:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the

course of justice, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice?.
In Shande v State (supra) an explanation for the phrase proof beyond reasonable doubt was expressed by the noble Lord, Pats-Acholonu, JSC in this manner, page 19 of the E-Report:
proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”?
Therefore, proof beyond reasonable doubt simply means that there is credible evidence upon which the Court can safely convict, even if it

is upon the evidence of a single credible witness; Adelumola v State (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36; (2008) LPELR-1423 (SC); Ayedatiwor v. The State (2014) LPELR-23034 (CA). The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. Thus, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.

punishable under Sections 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 515 Laws of the Federation of Nigeria, 2010. Section 1 of the Robbery and Firearms (Special Provisions) Act provides as follows:-
1. (i) any person who commits the offence or robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
2. If –
(a) any offender mentioned in sub-section (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
Section 6 thereof provides:
6. Any Person who-
(a) Aids, counsels, abets or procures any person to commit an offence under Sections 1, 2, 3, and 4 of this Act; or
(b) Conspires with any person to commit such an offence; or
(c) Supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of

this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.
It is now to see if elements of the offence were proved by the prosecution by the accepted methods.

agreement?s objective, and?action or conduct that furthers the agreement; a combination for an unlawful purpose.
Ingredients of the offence of criminal conspiracy, which the prosecution must establish are:
1. That there was an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than an agreement to commit an offence that some act beside the agreement was done by one or more of the parties in furtherance of agreement.
3. That each of the accused individually participated in the conspiracy.

in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence; Orisa v State (2018) LPELR-43896(SC). The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra). Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC in Kayode v State (supra) at page 67 of the E-Report commented:
?It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.?
?
The Appellant herein was alleged to have conspired with the other accused persons to commit the offence of armed robbery. His extra judicial statement, Exhibit 4, and, the extra judicial statements of the 1st and 2nd accused persons, Exhibits 2 and 3, were all admitted in evidence after a trial-within-trial was conducted. I note that there was no ground of appeal challenging the ruling of the lower Court on the

trial-within-trial. Nevertheless, the Appellant?s Counsel has emphasized the fact that the Appellant?s statement was retracted.

The law is quite settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying “…the highest place of authenticity when it comes to proving beyond reasonable doubt.”; Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303. See also Emeka v. State (2001) LPELR-1125(SC); (2001) 14 NWLR (PT. 734) 666; Akpan v. State (2008) 4-5 S. C. (PT. II) 1; Dawa v. State (1980) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (PT 11) 1;

Galadima v. State (2012) 12 MJSC (PT 111) 190; Fatai v. State (2013) LPELR-20182(SC). Danjuma v. The State (2019) LPELR-47037(SC). It is however, desirable to have outside the confessional statement some evidence however slight, of the circumstances which made it probable that the confession was true; Emeka v. State (supra); Akpan v. State (supra); Galadima v. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Tests to be applied or followed by the trial Court in determining the issue of weight to be attached to confessional statements were laid down in R v. Sykes (1913) 8 Cr. App R 233 and approved in Kanu v. R (1962/55) 14 WACA 30. By these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained

and have been proved?
The trial judge ought to be satisfied with the answers to these questions; Mbang v. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola v. State (2012) 6-7 MJSC (PT 11) 47. If the confessional statement passes these test questions satisfactorily, a conviction founded thereon is invariably upheld, notwithstanding the fact that the accused person retracted or resiled from the statement, unless there are other grounds of objection; Lasisi v. State (2013) LPELR-20183(SC). If the confessional statement fails to pass the tests, no conviction can properly be founded on it; Yesufu v. The State (1976) LPELR-3527(SC), (1976) 6 SC 167; Egboghonome v. State (1993) 7 NWLR (PT 306) 383; Lasisi v. State (supra); Bassey v. The State (2019) LPELR-46910(SC).

In Exhibit 3, reproduced at page of the Record of Appeal, the 2nd accused person stated:
That on 31/3/2013 at about 200hrs myself, Angel and Dahiru Sanusi made an arrangement that we will snatch a car and took(sic) it to Nasarawa state and sale(sic) it to one banker man there. Then it was Angel that went and brought the driver and the car at the back of Makati Stadium, Makurdi and two of

us (1) Dahiru Sanusi and (2) myself Paul Obase now came out from where we hide(sic) and snatched the car from the driver.

In Exhibit 4, the Appellant stated:
“That on the 1st April, 2013 at about 2000hrs one Hausa boy whom we used to call him Angel, Paul Obasi and myself planed(sic) that two of us with Paul Obasi will go and hide at the back of Makati Stadium that the said Angel will go and call taxi man with a car to the back of Makati Stadium so that we will snatch the car and go and sell it in Nasarawa State to banker man. Then when the said Angel bring the car at Makati Side and pretend like he wanted to pay the money then two of us that is myself and Paul Obasi rushed outside and met them and Angel have something like gun as he pointed to the driver, the driver now run away and leave us with the car then all the three of us (1) Angel (2) Paul Obasi and (3) myself enter the car from Makati to new garage Makurdi and stopped there.?

PW1, the victim, had testified, page 114 of the Record of Appeal:
I am a taxi driver?on 1/4/13, I was driving my usual town service business. At about 2am, one of the accused persons approached me

and asked me to convey him to behind Macathy stadium?on our way going, his phone started ringing. He picked the call and told the caller that he was on his way. When we got to the place behind Macathy stadium, he said I should stop. When I stopped the car, he stepped out of it and removed his wallet. When he was about to pay me, two other guys came out from behind. As I was struggling with one of them about the car key, the one who picked me pointed a gun at me. When I saw the gun, I had no choice than to jump out and run away. They rushed into the car and drove it away.

PW3, Augustine Ejembi of the Police SARS team that arrested the Appellant and other accused persons in the stolen vehicle, also testified that they received a distress call at about 2.30am that a car was snatched. He said, page 147 of the Record of Appeal:
?On our way towards the ?A? Division Police Station, we met the complainant who stopped our vehicle. He told us he carried two boys in his car and when he was dropping them two others came and met him and snatched his car at gun point?When we came out we met only three people inside the motor. We

arrested all of them and put them inside our vehicle.?

The discrepancy on the number of persons that were conveyed by PW1, stated by PW3 to be two rather than one person as was stated by PW1, is not material. The important fact is that PW1 conveyed a purported passenger who turned around to steal his vehicle. It is trite that minor contradictions in the evidence of the prosecution witnesses would not be fatal to the case of the prosecution; Wankey v. State (1993) LPELR-3470(SC); Princent & Anor v. State (2002) LPELR-2925(SC); Ochani v. The State (2017) LPELR-42352(SC). As succinctly put by Akintan, JSC in Dibie v State (2007) LPELR-941(SC) at page 31:
?It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in an unconnected evidence given from human memory. They are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that

happened. There is therefore bound to be minor discrepancies in an account of the same event in the evidence of same event given by different eye-witnesses. Such could only not exist where such witnesses are schooled as to what to say.?
?
The common thread running all through these pieces of evidence is that the victim, PW1, while dropping off a purported passenger at Macathy Stadium, was surprised by the appearance of two other persons who, together with the purported passenger, stole his vehicle and made away with it. From the contents of Exhibits 3 and 4, the 2nd accused person and the Appellant, as well as one Angel who is at large, had conspired to steal a vehicle and were acting in concert to execute that plan. Their statements were consistent with the evidence of PW1, the victim, and PW3, the police. The similarity of the contents of Exhibits 3 and 4 is striking. In fact, the contents of Exhibits 3 and 4 corroborated the contents of Exhibit 2, the statement of the 1st accused person, who did not take part either in the conspiracy or in the actual execution but was picked up by the others after PW1?s car was snatched. The 1st accused was

discharged and acquitted by the lower Court. The statement of the Appellant, Exhibit 4, was therefore consistent with other facts, which were ascertained and proved. Exhibit 4 was therefore rightly relied upon as a confessional statement by the lower Court.

As earlier noted, the charge of conspiracy can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused person; Orisa v State (supra); Kayode v State (supra). The evidence in proof of conspiracy may be circumstantial. It is the law that circumstantial evidence must be so cogent and compelling as to lead to only one rational conclusion which is the offence with which the accused is charged; Gbadamosi & Anor v. State (1992) LPELR-1313(SC).?
The learned trial Judge had held that part of the circumstantial evidence against the Appellant and other accused person was the testimony of PW1 in which he said that the person he

conveyed in his car had answered a phone call informing the person who called him that he was on his way. Obviously, the telephone conversation reported by PW1 took place via a mobile telephone. The Appellant?s Counsel has challenged this conclusion by the lower Court. On this issue, I found the book titled: Electronic Evidence in Nigeria by Dr. T.A. Nwamara to be very resourceful. The learned author explains that the Global System for Mobile Communication (GSM) is a digital cellular system that allows mobile telephones to connect to each other; page 12. There are several cellular networks in Nigeria with cell sites to which a customer is connected. Connection to the particular cell site enables the customer of the network to make and receive telephone calls or use other forms of digital communication. As further explained by Sir Nwamara, page 59 thereof:
?Each cell site is connected to a central computing infrastructure, called a Class 5 switch. This infrastructure processes the calls by routing them to their destination and retain logs for the purpose of sending out bills, maintenance and, if necessary, to carry out investigation.?<br< p=””

</br<

On obtaining digital evidence from the network, the learned author further said, page 61:
?Transcripts of phone calls and messages can also be obtained from network providers to aid criminal investigation or articulate evidence in civil cases.?
Similar views were expressed in S.T. Hon?s Law of Evidence in Nigeria, pages 506 ? 507, cited by this Court, per Ikyegh, JCA in Ahmed v Nigerian Navy (2017) LPELR-44025(CA) at pages 19 ? 20, thus:
“… a GSM gadget or telephone itself, if it contains valuable information, can be successfully tendered in evidence together with whatever message or information stored therein; as evidence, the only duty of the tendering party being to read it in open Court and to demonstrate its contents in the open Court in the similitude of reading ordinary documentary evidence when admitted in evidence or taking them as read.”?
In the instant case, the prosecution did not give any evidence of the result of any investigation of the call log or transcripts of phone calls made by the Appellant or any of the accused persons to prove that the phone call made in the stolen vehicle of PW1

was made by or to the Appellant or one of the accused persons. There was no certain evidence to ground a conclusion that the telephone conversation took place between the accused persons, including the Appellant. Therefore, the conclusion by the learned trial Judge that there was circumstantial evidence by the said telephone conversation lies in the realm of speculation, with no footing at all to stand on.

Notwithstanding, the contents of Exhibits 3 and 4, as well as the evidence of PW1 and PW3 lead to the irresistible conclusion that there was conspiracy by the Appellant, the 2nd accused person and the escapee Angel to commit an offence.

Armed Robbery
In order to ground a conviction for the offence of armed robbery, the prosecution must prove, beyond reasonable doubt, the following elements of the offence:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.
See: Dawai v. State (2017) LPELR-43835(SC); Orisa v State (supra); John v. The State (2019) LPELR-46936(SC); State v. Sani

(2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction; Ugboji v. State (2017) LPELR-43427(SC). It is now to see if these elements were proved.

That there was a robbery
The victim here was Onah Amos, who testified as PW1. He was a taxi driver who was forcefully dispossessed of his vehicle by three men at behind Macathy Stadium, where he had stopped to drop off his passenger who turned out to be one of them. According to his evidence, his purported passenger threatened him with a gun before he ran away. He made a report of the incident to the SARS Patrol. The stolen vehicle was recovered by PW3 and his SARS Patrol team, while the Appellant and two other persons were apprehended inside the said vehicle. PW2 was a Police Corporal with the SARS Section of the Nigeria Police Headquarters, Makurdi. He was present at the station when the report of armed robbery was made against the Appellant and his co-accused persons upon their arrest by PW3 and his team. The recovered vehicle was later released to the complainant, PW1, on bond, Exhibit 1. The fact that there was a robbery was not contested. There was therefore a robbery.<br< p=””

</br<

That the robbery was an armed robbery and that the accused was the robber or one of those who took part in the armed robbery
In view of the contentions of the Appellant, I consider it expedient to consider these two elements together.

Armed robbery means simply stealing plus violence, used or threatened. The offence of robbery with firearms is committed where at the time of the commission of robbery, the accused is proved to have been armed with ‘firearms’ or ‘offensive weapon’ Aruna v. The State (1990) 6 NWLR (Pt.155) 125: Tanko v. State (2009) (2009) LPELR-3136(SC). The prosecution is required to prove that a weapon capable of causing grievous harm was involved in the robbery. Testifying on the incident, PW1, the victim, said, page 114 of the Record of Appeal:
?When I stopped the car, he stepped out and removed his wallet. When he was about to pay me, two other guys came out from behind. I was struggling with one of them about the car key, the one who picked me pointed a gun at me. When I saw the gun, I had no choice than to jump out and run away.
The Appellant and two other co-accused persons were arrested in the

stolen vehicle by the SARS Patrol team on the same night. PW3, who was part of the patrol team that apprehended the Appellant and the co-accused persons, testified that his men conducted a search of the vehicle before they left the place but they found no weapon in the car, page 147 of the Record of Appeal. Under cross examination, PW2 said that he conducted searches on the accused persons and in their houses, but that he found no gun with any of them. He further said that he found no incriminating evidence on any of the accused persons when he conducted the search. However, a certain person called Angel was mentioned by the Appellant and other accused persons in their statements, Exhibits 2, 3 and 4. But, PW2 said that all efforts made to apprehend the said Angel had proved abortive.?
In Exhibits 2, 3 and 4, the Appellant and other accused persons alleged that the stolen car was driven by the escapee Angel. The Appellant and the 2nd accused person both denied that they had used any gun in the operation. In Exhibit 3, the 2nd accused person while admitting that he, as well as the Appellant, and the escapee Angel snatched the car, further stated:<br< p=””

</br<

?We did not use gun in snatching the car. It was Angel that have(sic) something like a gun which he pointed to the driver, he run away?All four (4) of us are the people that snatched the car from that complainant. I have no gun in the operation. It was only Angel that has something like gun as he pointed to the driver(sic) think that it was a gun then he run(sic) away that is how we snatched the car (Emphasis supplied)
The Appellant in Exhibit 4 similarly stated that:
?Angel has some thing like gun as he point to the driver, the driver now run(sic) away.? (Emphasis supplied)
PW2 under cross examination said, page 141 of the Record of Appeal:
?At the time of the robbery, it was still dark. The victim revealed to me that he jumped out of the vehicle and ran away. He did not tell me the type of gun used. He said he was scared when he saw a gun being pointed at him?I conducted searches on the accused persons and in their houses. I did not find any gun with any of them.? (Emphasis supplied)?
PW1 under cross examination also said the incident took place in the dark

and that he did not describe to the police the type of gun that was pointed at him.
It must be made clear that in proving the offence of armed robbery, it is not required of the prosecution to produce the weapon or if a fire arm, to produce evidence that it was actually fired. Once the prosecution proves the ingredients required to prove the offence of armed robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person; Olayinka v. State (2007) LPELR-2580(SC): Adisa v. State (2018) LPELR-46340(SC).
Aside from the victim, PW1, there was no eye witness. But PW1 testified that he ran away after he saw a gun pointed at him. PW2 and PW3 did not see or find a gun or other weapon on the accused persons or in the stolen vehicle or in their respective homes. In Exhibits 3 and 4, the 2nd accused person and the Appellant denied that they used a gun but rather that the escapee Angel used something like a gun, which PW1 saw and assumed it was gun before he ran away. The Appellant?s Counsel has strenuously argued that no gun was used in the operation by the Appellant and the other accused person.

Therefore, the offence, if any ought to be robbery, not armed robbery. I am afraid I am not persuaded by that argument.
PW1 testified that he had resisted surrendering the car key to the robbers until he saw a gun pointed at him. On that basis, he abandoned the car and ran off. In other words, even if it was something like a gun but not an actual gun, PW1 was put in such mortal fear by its appearance on the scene that he surrendered the car key and ran for his dear life. Armed robbery is stealing with force or violence used or threatened. The offender by the provisions of Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act must be armed with any firearms or any offensive weapon or is in company with any person so armed. An offensive weapon has been described as any article made or adapted for use for causing injury to the person being robbed or intended by the person having it for such use by him; State v. Fadezi (2018) LPELR-44731(SC). This Court, per Alagoa, J.C.A. in Sowemimo v. State (2010) LPELR-4972(CA) at page 27, also explained it this way:
“Offensive weapon” would invariably include any weapon or instrument which creates in

the mind of the victim reasonable apprehension that were it used on his/her person it would cause death or some grievous bodily harm or hurt
Therefore, if the victim reasonably believed that the weapon was real and not a fake one, the use of such weapon to dispossess him of his property by force would amount to armed robbery. Robbery with a fake weapon would be treated exactly the same as a case involving a real weapon. The fake weapon becomes the weapon used in the robbery. As long as the weapon used, whether fake or real, is one that could potentially cause harm to another, the offence constitutes armed robbery. As expressed by Olatawura, JSC in Sele v State (1993) LPELR-3030(SC) at page 23:
?A farmer is allowed to carry his cutlass, a butcher is allowed to carry his knife, but where the cutlass or the knife is put into unlawful use e.g. stabbing with the intention to facilitate the commission of a crime, the weapon therefore becomes an offensive weapon. It is the use made of the weapon and the manner it is used that qualifies it to be an offensive weapon.
The objective behind the use or display of something like a

gun was to intimidate or scare the victim, PW1, to surrender his car by force. That objective was accomplished when PW1, thinking he was faced with a gun, surrendered the car key to his attacker and escaped. Therefore, whether the gun was real or not, loaded with bullets or not loaded, the offence was armed robbery. The only way to negate a conviction for armed robbery for the lesser charge of robbery, as was vigorously advocated by the Appellant?s Counsel, would be when no weapon, fake or real, was used at all in the robbery.
I am fortified in this position by the decision of the Supreme Court in Babarinde & Ors v. State (2013) LPELR-21896(SC), per Kekere-Ekun, JSC, as follows:
?In order to secure a conviction for armed robbery, the prosecution must prove that the accused person was armed with an offensive weapon. The weapon may be a gun or any other object likely to induce fear of bodily harm in the victim such as a cutlass or machete. Where a gun or other offensive weapon is used in the commission of an offence, it is not essential to tender the weapon to secure a conviction, provided there is cogent eye witness evidence or in the

absence of eye witness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused. See: Alor v. the State (1996) 4 NWLR (Pt. 445) 726 @ 742-743 H – A. In the case of Dibie v. The State (2004) 14 NWLR (Pt. 893) 257 @ 280 – 281 H – A, it was held that whether it was a real pistol or something that looked like a pistol that was pointed at the witness was immaterial. What was material was that either an actual pistol or what looked like a pistol was used to threaten the witness and induced fear in her. See also: Sele v. State (1993) 1 NWLR (Pt. 269) 276.?
The incident was therefore an armed robbery.

The next question is whether the Appellant was one of the armed robbers. At the trial, the Appellant completely retracted his confessional statement in Exhibit 4 and gave an entirely different account in which he also sought to raise an alibi. It is well settled that when an accused person relies on the defence of alibi, he is simply saying that he was not at the scene of the crime when the offence for which he is charged was committed. It is the duty of the accused person at the earliest opportunity to

raise this defence and to furnish the investigating authorities with comprehensive details of his whereabouts on the day the offence was committed. The defence of alibi must be precise and specific in terms of the place that the accused person was, person(s) that he was with, and possibly what he was doing at the material time. This is to ensure that the investigating authorities are not sent on a wild goose chase; Ochemaje v. State (2008) LPELR-2198(SC), (2008) 15 NWLR (Pt. 1109) 57; Ebre & Ors v. The State (2001) LPELR-995(SC); Ikumonihan v. State (2018) LPELR-44362(SC); Adegbite v. The State (2017) LPELR-42585(SC). Once this is done, the onus is on the prosecution to investigate the alibi, and the standard of proof required to establish the defence of alibi is one based on balance of probabilities. However, a plea of alibi is demolished if the prosecution adduces compelling and sufficient evidence to fix the accused person at the scene of the crime at the material time; Smart v The State (2016) LPELR-40827(SC); Ezekwe v The State (2018) LPELR-44392(SC) Obakpolor v State (1991) 1 NWLR (165) 113; Abudu v The State (1985) 7 N.W.L.R. (Pt.1) 55.

The Appellant did not raise any alibi until he testified at the trial as DW5. His evidence therein was completely different from the confessional statement he made in Exhibit 4. At the trial, the Appellant testified that he received a phone call from his oga (master), called Oseni, who lived in Abuja that there was carpentry work to be done by him and that he should go to Abuja very early the next day to do the work. On 1/4/2013, at about 4-5 a.m., he left his house and took a motorcycle to Lafia Garage, North Bank, Makurdi to take a vehicle to Abuja. Since it was time for prayers, he went into a nearby mosque to pray. After prayers, he joined a vehicle packed by the roadside after its driver informed him that he was bound for Abuja through Lafia. While waiting for the driver to purchase fuel in the car, he, as well as two other passengers in the vehicle were arrested and taken to a police station. DW6 was Oseni Yelwa who said he phoned the Appellant on 31/3/2013 to invite him to Abuja to replicate some carpentry work he had done for him in the past in Makurdi. The Appellant agreed to go to Abuja the following morning. Around 5am, the Appellant called him to say

that he had already boarded a vehicle and on his way to Abuja. When he called again about 1pm, the Appellant?s line did not connect. Two days later, the Appellant’s sister called to inform him that the Appellant had been arrested by the police and was still in police custody. Under cross examination however, he said that he did not inform the police that the Appellant was on his way to Abuja on his invitation when he was arrested. He also did not go to Makurdi at all.

The learned trial Judge rejected the evidence of both the Appellant as DW5 and of DW6. I am also not persuaded that the evidence of both the Appellant and his witness, DW6 have the ring of truth at all. In the first place, an alibi cannot seriously be raised at the trial. The police obviously cannot investigate it at that point. I agree with the learned trial Judge that the testimony of the Appellant as DW5 appeared to be an afterthought. Even if, as argued by the Appellant?s Counsel, the police did not give the Appellant the opportunity to present his alibi during investigations because Exhibit 4 was allegedly made under duress, his witness, DW6, admitted that he did not

bother to come to the police during this period to set the record straight. The incident happened on 1/4/2013. DW6 testified on 19/10/2016. That means that for over three and a half years his witness, DW6, who the Appellant described as his master and relied on as alibi, made no attempt to inform the investigating authority that he was the person who invited the Appellant to Abuja and that he was aware when the Appellant boarded a vehicle for Abuja. This story does not sound real life. In fact the trial Judge described him as a ?tutored witness?! In further description of the role of DW6, the learned trial Judge said:
?As for DW6, I watched him and I observed his countenance. I do not believe him as he appeared to have came(sic) to Court just to try and get the 3rd accused person off the hook.?

To my mind, this description further nailed the case against the Appellant. While it is true that the demeanour of a witness may not be a guide to the truth, the conclusions of a trial Judge on how a witness behaved in the box should not be lightly disregarded; Ige & Anor v. Akoju & Ors (1994) LPELR-1451(SC). I agree with the

learned trial Judge that the evidence of DW6 gives the impression that he was merely a contrived witness. When placed beside the other pieces of evidence adduced by the Respondent in this matter, particularly Exhibit 4 and the testimonies of PW1, PW2 and PW3, the evidence of DW5 and DW6 do not appear to bear semblance to truth. The Appellant was arrested inside the stolen vehicle with the other accused persons, that was in locus criminis, as it were. It was at that point that details of an alibi ought to have been provided by him for investigation by the police. His alleged master, DW6, also did not come forward with details of his knowledge about the movement of the Appellant at the material time until more than three and a half years later! I agree that this line of defence qualified as an afterthought.

The Appellant?s Counsel also raised the issue that there was no identification parade conducted in which the Appellant was identified by the victim, the incident having taken place in the dark. Rather, PW1 under cross examination said it was the police that showed him the accused persons, including the Appellant. In my contribution to the decision

of this Court in Kesena v. State (2017) LPELR-42458(CA) at pages 62 – 64, I had expressed the following opinion:
?Correct identification of an accused person is very crucial in order to ensure that there is no miscarriage of justice. Proper identification is a question of fact to be considered by the trial Court on the evidence adduced for that purpose; Ukpabi v. State (2004) 11 NWLR (Pt.884) 439. Identification of an accused person means a whole series of facts and circumstances for which a witness or witnesses can associate an accused person. These may include evidence in the form of finger prints, handwriting, voice, identification parade, photographs or the recollection of the features of the accused person by a witness who saw him in the commission of a crime or a combination of two or more of these ;Archibong v. State (2006) 14 NWLR (Pt.1000) 349; Anyanwu v. State (1986) 5 NWLR (Pt.43) 612.
An identification parade is however not a sine qua non to conviction; Ukpabi v. State (supra); Igbi v. State (2000) 2 S.C. 67. The Supreme Court, per Olatawura, JSC (of blessed memory) in Adeyemi v. State (1991) 2 SCNJ 60, (1991) LPELR-168(SC), put it

this way:
“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross examined nor shaken under cross examination, nothing stops a trial Judge from accepting his evidence.”?
There must be real doubt as to who was seen in connection with the offence to require an identification parade; Balogun v. AG Ogun State (2002) 6 NWLR (Pt.763) 512. Therefore, where an accused person is promptly identified by an eye witness or by the victim without any prodding, or where the accused person was well known to the eye witness or the victim before the incident, an identification parade will not be necessary; Adamu v. State (1991) 4 NWLR (Pt.187) 530; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43; Eyisi v. State 12 S.C. (Pt.1) 24; Ochiba v. State (2011) LPELR-8245 (SC). In her concurring opinion in Nwaturuocha v. State (2011) LPELR-8119 (SC), Adekeye, JSC listed circumstances when an identification parade is

essential as follows:
1. Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
2. Where the victim of witness was confronted by the offender for a very short time.
3. Where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused.?
In the instant appeal, the Appellant was not known to the victim, the incident took place in the dark and there was no eye witness.
But, the Appellant was arrested inside the stolen vehicle, the locus criminis and he gave no plausible explanation to justify his presence thereat. Having been apprehended at the scene of crime, inside the very stolen vehicle, with no plausible explanation for his presence thereat and having regard to his confessional though retracted statement, Exhibit 4, the fact that there was no identification parade conducted would not be fatal to the case of the prosecution; State v. Sa’idu (2019) LPELR-47397(SC); Chukwunyere v. state (2017) LPELR-43725(SC); The state v. Ekanem (2016) LPELR-41304(SC). The alibi indirectly raised by the Appellant

was not sustainable. The Respondent had adduced compelling and sufficient evidence to fix the Appellant at the scene of the crime at the material time.

All considered, I agree with the conclusion of the learned trial Judge that the elements of the offences for which the Appellant was charged were proved by the prosecution beyond reasonable doubt against the Appellant. All the issues arising for determination are thus resolved against the Appellant.

The appeal is completely without merit. The appeal fails and is hereby dismissed. The conviction and sentence of the Appellant is hereby affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I have read the Judgment just delivered by Otisi, JCA I am in complete agreement with his reasoning and conclusion that on the whole, the Appeal is unmeritorious having regard to the resolution of both issues for determination against Appellant.

Indeed, the trial Court rightly acted on the confessional statement of Appellant which was freely and voluntarily made; more so that it was amply corroborated by the evidence of PW1 and PW3. The minor discrepancies highlighted between

the evidence of the PW1 and PW3 were insignificant and insubstantial, It is settled that minor contradictions in the evidence of prosecution witnesses are not fatal to the case of the prosecution, especially in the face of the confessional statement and overwhelming evidence. See Danjuma V State (2019) LPELR-47037(SC); Ochani V State (2017) LPELR-42352(SC); Fatai V state (2013) LPELR-20182(SC); & Galadima V state (2012) 12 MJSC (Pt. 111) 190.

For this reason and for the detailed reasons contained in the lead Judgment, I also concur that the Appeal fails, Accordingly, I abide by the Orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein.

It is noteworthy that appellant?s confessional statement was admitted in evidence as Exhibit 4 after trial-within-trial by the trial Court. There is no ground of appeal which attacks the admission of the said confessional statement. The result is that the admission of the statement on the basis that it

was voluntarily made can not be disturbed by this Court. It has been held that a confessional statement admitted after trial-within-trial is sufficient by itself to ground conviction provided it is direct and positive as to the commission of the crime charged. See Chiokwe V State (2013) 5 NWLR (Pt. 1347) 205, 222.

In the confessional statement, the appellant graphically described how he conspired with others to rob a taxi driver of his car and also how they carried out the conspiracy with the PW1, a taxi driver, as their victim. He was robbed of his car with the appellant and his co?conspirators using what appeared to be a gun to induce fear in him. A confessional statement is the best evidence that the accused committed the offence/s for which he is charged – Asimi V State (2016) 12 NW’LR (Pt. 1527) 414, 431.
?
There was some evidence other than the confession which shows that the confession is true and consistent with other ascertained facts which had been proved. The appellant and other accused persons were arrested by the police in the stolen car shortly after the armed robbery. The appellant could not offer any satisfactory

explanation for his presence in the said car. The evidence of PW1, the victim of the armed robbery, is also relevant in this regard. Having identified himself in his confessional statement with the armed robbers that robbed the PW1 of his car, the need for an identification parade did not arise. see Okanlawon V state (2015) 17 NWLR (Pt. 1489) 445. It was therefore safe for the trial Court to convict the appellant for the offences of conspiracy and armed robbery.

It is on account of the above and the more comprehensive reasons in the lead judgment that I also hold that the appeal has no merit. I accordingly dismiss the same and affirm the judgment of the trial Court.

Appearances:

Godson C. Ugochukwu, Esq.For Appellant(s)

Mrs. Aver Shima (Principal State Counsel, Ministry of Justice, Makurdi, Benue State)For Respondent(s)

Appearances

Godson C. Ugochukwu, Esq.For Appellant

AND

Mrs. Aver Shima (Principal State Counsel, Ministry of Justice, Makurdi, Benue State)For Respondent