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EMMANUEL IDOWU v. THE STATE (2019)

EMMANUEL IDOWU v. THE STATE

(2019)LCN/13731(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of August, 2019

CA/IB/74C/2017

 

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

EMMANUEL IDOWU Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE BURDEN AND STANDRAD OF PROOF IN CRIMINAL TRIALS

A vital element of our criminal jurisprudence is that the prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. In OGUNDIYAN VS. THE STATE (1991) 1 NSCC 448, 1991 LPELR 2333 (SC) AT PAGES 13 ? 14 the apex Court per Obaseki JSC held as follows:
?The standard of proof in all criminal trials is proof beyond reasonable doubt. See HYCIENTH EGBE VS. THE KING 13 WACA 105 AT 106. In that celebrated case, verity CJ (Nigeria) delivering the judgment of the Court on the standard of proof said:
?As illustration of the required standard of proof and degree of certainty in Criminal trials, we wish to refer to a portion of the charge to the jury of Martin B. in REX V. WHITE 4 F & F 383 AT 384 where the learned Baron said:
In order to enable you return a verdict against any person, you must be satisfied beyond reasonable doubt of his guilt and a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.?
A case is proved beyond reasonable doubt if the evidence against the accused person is strong 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?. See SABI VS. THE STATE (2011) 14 NWLR (PT. 1268) 421; IWUNZE V FEDERAL REPUBLIC OF NIGERIA (2013) 1 NWLR (PT. 1324) 119; NJOKU VS. THE STATE (2013) 2 NWLR (PT. 1339) 548 and AJAYI VS. THE STATE (2013) 9 NWLR (PT. 1360) 589.
Proof beyond reasonable doubt does not however mean proof to a scientific certainty or mathematical exactitude. It does not mean proof beyond shadow of doubt. All the prosecution needs to do is to establish the guilt of the accused with compelling and conclusive evidence. See DIBIE VS. THE STATE (2007) 3 SC( PT. 1) 176; AKALEZI VS. THE STATE (1993) 2 NWLR (PT. 273) 1; ONAKOYA VS. FRN (2002) 11 NWLR (PT. 779) 595 and AGBO VS. THE STATE (2006) 6 NWLR (PT. 997) 545. PER OJO, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON A VOLUNTARY BUT INCONSISTENT CONFESSION

In BASSEY VS. THE STATE (2012) 3-4 MJSC AT 194-196, the Supreme Court per Rhodes Vivour JSC held as follows:
?Where the confession is found by the Court to have been voluntary and it is true but inconsistent with the accused person?s evidence in Court, it is safe to convict. RE: WALTERS SYKES (1913) 18 CAR P.233; QUEEN VS. OBIASA (1962) 2 SCNLR PG. 402; MUMUNI VS. THE STATE (1975) 6 SC PG. 79; AKPAN VS. THE STATE (1992) 6 NWLR (PT. 248) 439.
Also, in EMOGA VS. THE STATE (1997) 7 SCNJ 518 AT 529, the Supreme Court per Onu JSC held as follows:
?It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he has a changed mind. The whole trial will be a mockery as aptly put by the Attorney General of Ondo State and it would be dangerous to apply the principle of extra judicial confession of accused person as it would open a floodgate of retracting of all statements made by the accused person?s before police officer?.
?It is thus the settled position of the law that whenever an accused person makes an extra judicial statement admitting the commission of an offence with which he is charged, that statement will still be considered and taken into account in the determination of his guilt notwithstanding that he gives evidence in Court contrary to that statement. PER OJO, J.C.A.

DEFINITION OF A TRIAL WITHIN  TRIAL

A trial within trial as the name suggests is a complete and independent proceedings within the main trial for the sole purpose of determining the question of voluntariness of a Confessional Statement. See IBEME VS. THE STATE (2013) LPELR 20138. It is a mini trial where the prosecution and defence give evidence, are cross examined and addresses of Counsel taken. A ruling either upholding or overruling the objection is thereafter delivered. Where the objection is overruled the statement is admitted in evidence and marked as an exhibit.
Once a Confessional Statement is admitted in evidence following a trial within trial it becomes difficult for an Appellate Court to intervene on its admissibility. This is because evaluation of the evidence adduced at the trial is based on the credibility of the witnesses and the duty to evaluate belongs solely to the trial Court. See LASISI VS. THE STATE (2013) 9 NWLR (PT. 1358) 74 AT 96 ? 97 PARAGRAPHS H ?PER OJO, J.C.A.

DEFINITION OF REASONABLE DOUBT

The law is settled beyond peradventure that reasonable doubt that will justify an acquittal should be predicated on reasons arising from evidence adduced or lack of it. It must be a doubt capable of being entertained by anyone and must not be fanciful, flowery or imaginary. The doubt must be so real that it cannot be waived aside. The doubt must be such that will cause a person to tarry a while, hesitate, have second thoughts and ponder deeply before taking a decision that truly the accused person really committed the offence.
See ABEKE VS. THE STATE (2007) ALL FWLR (PT. 366)644; BOLANLE VS. THE STATE 12 SC (PT. 11) 145 and OCHIBA VS. THE STATE (2011) 1 ? 2 SC (PT. 11) 43. PER OJO, J.C.A.

THE DEFENCE OF ALIBI

The law on alibi is common place. In UKEWUNNENYI & ANR. VS. THE STATE 4 NWLR (PT. 114) PAGE 131 AT 144, the Supreme Court held as follows:
?It is well settled that the defence of alibi where successful, results in the acquittal of the accused relying on the defence. It is a claim absence of both actus; not only that it is not reus, but also that there was in fact not act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. There is no doubt that such a defence being a matter particularly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI VS. THE STATE (1965) NMLR 33; ODIDIKA VS. THE STATE (1977) 2 SC 21 . . . The best defence and evidence of an alibi is one pleaded at the very first opportunity and not at the time of trial.?
Obaseki, JSC (of blessed memory) in his concurring judgment at page 149 also explained thus:
“Alibi is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the investigation stage, it is a bounding duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed). See GACHI V. THE STATE (1965) NMLR 333; NTAM VS. THE STATE (1968) NMLR 86; BOZIN VS. THE STATE (1985) 2 NWLR (PT 8) 465; NWABUEZE VS. THE STATE (1988) 4 NWLR (PT 86) 16 … If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in Court, he has an uphill task of convincing the trial judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime”
From the above, it can be deduced that the basic rules and particulars on which a valid plea of alibi must stand include (a) the specific place/places where the accused was (b) the people in whose company he was and (c) what if any, transpired at the said time and place. While particulars (a) and (b) must be jointly met before the plea stands, particular (c) is optional. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Appellant and one Christian Igwe were arraigned before the Oyo State High Court sitting in Ibadan on a two count charge of Conspiracy and Armed Robbery in Suit No: I/25C/2006 which reads thus:
COUNT 1
That you Emmanuel Idowu ?m? and Christian Igwe on or about the 6th day of May, 2005 at Agbede Area, Adebubuyi Close, Apata, Ibadan in the Ibadan Judicial Division whilst armed with offensive weapons to wit: guns conspired together to rob Joseph Ibilola Fatoye of the sum of Eight Thousand Naira (8,000.00) and thereby committed an offence contrary to Section 6(b) of the Robbery and Fire Arms (Special Provisions) Act Cap Rule 11 XIV Laws of the Federation of Nigeria 2004 punishable under Section 1(2) (a) of the same law (supra).
COUNT II
That you Emmanuel Idowu ?m? and Christian Igwe ?m? on or about the 6th day of May, 2005 at Agbede Area, Adebubuyi Close, Apata, Ibadan in the Ibadan Judicial Division whilst armed with offensive weapons to wit: guns robbed Joseph Ibilola Fatoye of the sum of Eight Thousand Naira

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(8,000.00) and thereby committed an offence contrary to and punishable under Section 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act Cap Rule 11 Vol. XIV Laws of the Federation of Nigeria 2004.

The Appellant pleaded not guilty to both counts of the charge. In a judgment delivered on the 20th of January 2009, he was convicted and sentenced on both counts of the charge. Dissatisfied, the Appellant filed the instant appeal. The Notice of Appeal which contains seven grounds can be found at pages 133 ? 139 of the record.

Briefly, the facts leading to the complaint is that on 6th of May, 2005 at about 1.30 a.m Joseph Ibilola Fatoye who lives with his family at Apata Area, Ibadan heard his dog back in an unusual manner. He woke his wife up and they both observed the presence of someone standing behind their window. The outsider said ?Baba o we have come.? When asked who he was and what he wanted, he replied they are armed robbers and demanded for their money, handset and gun. His wife handed the sum of N8,000.00 contained in a purse to them through the window. Not satisfied, the robbers broke the louvers and the burglary

2

proof and forced their way in to the house. Having gained entry, they ordered the family to lie down and face the floor. They pointed their guns at them, ransacked the entire house and seized his gun and other valuable items. They threatened to kill him and his entire family. After some time he summoned courage and struggled with the robbers to recover his gun. During the struggle the gun detonated and the robbers escaped. He stated further that at day break, he reported the incident at the Apata Police Station where he made a statement after which he returned home. He later identified the Appellant and one other person at the Eleyele Police Station as part of the gang that robbed him and his family.

During the trial the prosecution called seven (7) witnesses and tendered several Exhibits.
Briefs of Argument were duly filed and exchanged by parties as follows:
(i) Appellant?s Brief of Argument dated 31st of December, 2018 was filed on the 10th of January, 2019. It was settled by Abiola Adegoke Esq.
(ii) Respondent?s Brief of Argument dated 23rd January, 2019 was filed on the 24th of January, 2019, and was settled by O. O.

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Ogundele of Counsel.

On the 9th of May, 2019 when this appeal was heard, learned Counsel representing both parties adopted and relied on their respective Briefs of Argument.

Learned Counsel to the Appellant in the Appellant?s Brief of Argument formulated the following issues for determination:
(i) Whether the prosecution has adduced sufficient evidence to ground a conviction of the Appellant of the offence of criminal conspiracy and armed robbery (Grounds 1, 5, 6 and 7)
(ii) Whether the Confessional Statement upon which the Appellant was convicted passed the test for a confession (Ground 2)
(iii) Whether the Appellant successfully raised the plea of alibi (Ground 3)
(iv) Whether the identification evidence adduced by the prosecution passed the test for identification evidence (Ground 4)

For his part, Learned Counsel to the Respondent formulated the following issues for determination:
(i) Whether the Appellant?s Confessional Statement passed the test of a confession (Appellant?s issue No. 2)
(ii) Whether on the strength of the evidence adduced, the trial Court was right in holding that the

4

prosecution proved its case beyond reasonable doubt. (Appellant issue No. 1)
(iii) Whether based on the direct circumstantial evidence, the Appellant was properly identified before he was found guilty and convicted (Appellant issue No. 4.)
(iv) Whether the defence of alibi was successfully raised by the Appellant (Appellant issue No. 4.)

I have critically examined all issues formulated by the parties. The issues formulated by them are identical. I adopt the issues formulated by the Appellant with some slight modification as the issues for determination in this appeal. The four issues are:
(i) Whether the Respondent proved its case against the Appellant beyond reasonable doubt.
(ii) Whether Exhibit F (the Appellant?s Confessional Statement) passed the test for a valid confession.
(iii) Whether the trial Court was right when it discarded the defence of alibi raised by the Appellant.
(iv) Whether an identification parade was necessary to identify the Appellant.
ISSUE I
Whether the Respondent proved its case against the Appellant beyond reasonable doubt.

Learned Counsel to the Appellant submitted that it is

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the duty of the prosecution to prove all the ingredients of the offence with which the accused is charged beyond reasonable doubt and that before a trial Court can convict an accused person it must satisfy itself that all the ingredients of that offence are present. He craved in aid the cases of AMADI VS. THE STATE (1993) 8 NWLR (PT. 314) 644; KALU VS. THE STATE (1988) 4 NWLR (PT. 90) 503; ANI VS. THE STATE (2009) 16 NWLR (PT. 1168) 443; MILLAR VS. THE STATE (2005) 8 NWLR (PT. 927) 236; SHEHU VS. THE STATE (2010) 2 ? 3 SC (PT. 1) 158 and the provisions of Sections 132 and 135 of the Evidence Act, 2011 and Section 36(5) of the 1999 Constitution as amended. He also emphasized that where there is any doubt the accused by law should be given the benefit of that doubt. He cited the case of ONAFOWOKAN VS. THE STATE (1987) 3 NWLR (PT. 61) 558 to support this proposition.
?
On the allegation of criminal conspiracy, Counsel put forward the argument that the Respondent did not prove that there was any agreement between the Appellant and others to commit an illegal act. He submitted there was nothing to show the Appellant intended or knew the facts which made

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his conduct criminal. He relied on the cases of OMOTOLA VS. THE STATE (2009) 7 NWLR (PT. 1139) 148; YAKUBU VS. FEDERAL REPUBLIC OF NIGERIA (2009) 14 NWLR (PT. 1160) 151; SUBERU VS. THE STATE (2010) 8 NWLR (PT. 1197) 586 and SANUSI VS. THE STATE (1984) 10 SC 166 AT 198 ? 199.

On the Appellant?s extra judicial statement, learned counsel argued that since the statement, Exhibit F had been retracted and was not corroborated by any other piece of evidence the trial Court was wrong when it held that the evidence of PW1 ? PW5 and Exhibits E, E1 and F established the offence of conspiracy. He went on to submit that the trial Court erred in law when it relied on the extra judicial statement of the 2nd accused person at the trial to convict the Appellant without giving him the opportunity to react to or adopt that statement. He cited the cases of R V AFOSE & ORS. (1934) 2 WACA 118; YONGO VS. COMMISIONER OF POLICE (1992) 8 NWLR (PT. 257) 36 AT 58 ? 59 and others and Rule 7(1) of the Criminal Procedure (statement to police officers) Rules 1960 to support his argument.
?
On the second count of the charge which is armed robbery, Counsel

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submitted that the Respondent did not prove that the Appellant took part in the robbery or had any fraudulent intention to appropriate PW1 and PW2?S properties with the use of threat or violence. He argued further that the Respondent did not also prove that he was armed with a fire arm or an offensive weapon and did not adduce any cogent evidence to place him physically at the scene of crime. This he said occasioned a miscarriage of justice to the Appellant. He relied on the provisions of Sections 383(1) and (2) and 401 of the Criminal Code Act as well as the cases of ATTAH VS. THE STATE (2010) 10 NWLR (PT. 1201) AT 224; AMINA VS. THE STATE (1990) 6 NWLR (PT. 155) 125 and OKOSI VS. ATTORNEY GENERAL OF BENDEL STATE (1989) 1 NWLR (PT. 100) PAGE 642.

He finally submitted that the corroboratory evidence relied on by the trial Court was not sufficient to prove that the Appellant took part in the armed robbery and that the serious doubt created in the Respondent?s case should have been resolved in his favour. He urged us to resolve this issue in favour of the Appellant.
?
Arguing per contra, learned Counsel to the Respondent cited the cases of

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HARUNA VS. ATTORNEY GENERAL OF THE FEDERATION (2012) VOL. 209 LRCN PAGE 70 AT 94 PARAGRAPHS F ? P and IGABALE VS. THE STATE (1992) 3 NWLR (PT. 230) 100 to submit that the guilt of an accused person can be proved either by his Confessional Statement, circumstantial evidence or evidence of eye witness. He submitted further that criminal conspiracy can be inferred or deduced from certain criminal acts of the party acting in agreement and with a common purpose. He argued that the evidence of PW1 to PW4 coupled with the act of Christian Igwe (the 2nd accused person at the trial) who led the security guard to the location where the Appellant was eventually arrested confirm the offence of conspiracy to rob against the Appellant.

He urged us to hold that the Appellant was properly charged, tried, convicted and sentenced and that the offences were proved beyond reasonable doubt against him. He urged us to resolve this issue against the Appellant.

A vital element of our criminal jurisprudence is that the prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. In OGUNDIYAN VS. THE STATE (1991) 1 NSCC 448, 1991 LPELR 2333

9

(SC) AT PAGES 13 ? 14 the apex Court per Obaseki JSC held as follows:
?The standard of proof in all criminal trials is proof beyond reasonable doubt. See HYCIENTH EGBE VS. THE KING 13 WACA 105 AT 106. In that celebrated case, verity CJ (Nigeria) delivering the judgment of the Court on the standard of proof said:
?As illustration of the required standard of proof and degree of certainty in Criminal trials, we wish to refer to a portion of the charge to the jury of Martin B. in REX V. WHITE 4 F & F 383 AT 384 where the learned Baron said:
In order to enable you return a verdict against any person, you must be satisfied beyond reasonable doubt of his guilt and a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.?
A case is proved beyond reasonable doubt if the evidence against the accused person is strong 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?. See SABI VS. THE STATE (2011) 14 NWLR (PT. 1268) 421; IWUNZE V FEDERAL REPUBLIC OF NIGERIA

10

(2013) 1 NWLR (PT. 1324) 119; NJOKU VS. THE STATE (2013) 2 NWLR (PT. 1339) 548 and AJAYI VS. THE STATE (2013) 9 NWLR (PT. 1360) 589.
Proof beyond reasonable doubt does not however mean proof to a scientific certainty or mathematical exactitude. It does not mean proof beyond shadow of doubt. All the prosecution needs to do is to establish the guilt of the accused with compelling and conclusive evidence. See DIBIE VS. THE STATE (2007) 3 SC( PT. 1) 176; AKALEZI VS. THE STATE (1993) 2 NWLR (PT. 273) 1; ONAKOYA VS. FRN (2002) 11 NWLR (PT. 779) 595 and AGBO VS. THE STATE (2006) 6 NWLR (PT. 997) 545.
?
The established fact from the record is that PW1 (Joseph Ibilola Fatoye and PW 2 (Florence Olubunmi Fatoye) were attacked in their house by an armed gang who dispossessed them of their valuables which include phones, N8,000.00 cash and a gun in the early hours of 6th May, 2005. The Appellant mentioned ?Musibau aka Agbalebi in his extra judicial statement (Exhibit F) as one of the members of the gang with whom he robbed PW1 and PW2. He also led the police and PW1 to the house of Engr. & Mrs. Olayinka Adewunmi where

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PW1?s gun was recovered. PW3 (Mrs. Olayinka Adewunmi) confirmed in her testimony before the lower Court that policemen came to her house to see Agbalabi, her security guard and that during the search three guns were recovered within the compound investigation revealed one of the guns belonged to PW1.

Furthermore, PW4 (Asimiyu Salawu) testified that at about 3.30am on the day of the incident he heard the barking of dogs. He called other security guards. They assembled themselves and proceeded to a location where they saw three men. They were able to arrest one of them. He said it was the man they arrested that led them to where the Appellant was arrested.
?
I note that the evidence of PW5 (Sule Salami) corroborates that of PW4. The 2nd Accused, Christian Igwe confessed that the Appellant led him and other members of their gang to the house of PW1 and PW2, PW4?s evidence is that Christian Igwe wore a black sleeveless vest. PW1?s evidence is that the robber who struggled with him wore something like a singlet. The evidence of PW6 (Cpl Mukaila Odesanmi) is that he went to Eleyele Police Division with PW1 where he identified the Appellant

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as part of the gang that robbed his family and that his investigation further revealed that the Appellant resides within the same area as PW1.

From all of the above evidence from the prosecution witnesses, I have no doubt that all the essential ingredients of the offence of criminal conspiracy and armed robbery were proved against the Appellant beyond reasonable doubt. I am convinced the Respondent proved the Appellant had both the actus reus and mens rea element of the offence of criminal conspiracy and armed robbery with which he was charged.

The law is settled beyond peradventure that reasonable doubt that will justify an acquittal should be predicated on reasons arising from evidence adduced or lack of it. It must be a doubt capable of being entertained by anyone and must not be fanciful, flowery or imaginary. The doubt must be so real that it cannot be waived aside. The doubt must be such that will cause a person to tarry a while, hesitate, have second thoughts and ponder deeply before taking a decision that truly the accused person really committed the offence.
See ABEKE VS. THE STATE (2007) ALL FWLR (PT. 366)644; BOLANLE VS. THE STATE 12

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SC (PT. 11) 145 and OCHIBA VS. THE STATE (2011) 1 ? 2 SC (PT. 11) 43.

The above standard is lacking in this appeal. I therefore find it difficult to agree with Appellant?s Counsel that a doubt was created in the Respondent?s case at the trial. The totality of the evidence of the prosecution witnesses satisfy the requirement of proof beyond reasonable doubt. None of the factual circumstances proved during the trial is consistent with the Appellant?s innocence. The finding of the trial Court that the evidence of PW1, PW2, PW4 and PW5 and Exhibits E, E1 and F are too strong to overlook in rebutting conspiracy against the Appellant cannot be faulted. See page 123 of the record.

The Appellant admitted the offences of criminal conspiracy and armed robbery in his extra judicial statement Exhibit F. The law is that Exhibit F should still be taken into account in determining his guilt irrespective of the fact that he resiled from that evidence in his testimony at the trial. In BASSEY VS. THE STATE (2012) 3-4 MJSC AT 194-196, the Supreme Court per Rhodes Vivour JSC held as follows:
?Where the confession is

14

found by the Court to have been voluntary and it is true but inconsistent with the accused person?s evidence in Court, it is safe to convict. RE: WALTERS SYKES (1913) 18 CAR P.233; QUEEN VS. OBIASA (1962) 2 SCNLR PG. 402; MUMUNI VS. THE STATE (1975) 6 SC PG. 79; AKPAN VS. THE STATE (1992) 6 NWLR (PT. 248) 439.
Also, in EMOGA VS. THE STATE (1997) 7 SCNJ 518 AT 529, the Supreme Court per Onu JSC held as follows:
?It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he has a changed mind. The whole trial will be a mockery as aptly put by the Attorney General of Ondo State and it would be dangerous to apply the principle of extra judicial confession of accused person as it would open a floodgate of retracting of all statements made by the accused person?s before police officer?.
?It is thus the settled position of the law that whenever an accused person makes an extra judicial statement admitting the commission of an offence with which he is charged, that statement will still be considered and taken into account in the determination of his

15

guilt notwithstanding that he gives evidence in Court contrary to that statement. The trial Court was therefore right when it took account of Exhibit F and relied on same to convict the Appellant who retracted same at the trial.

The argument of Appellant?s Counsel that the trial Court failed to make a finding on the authenticity of Exhibit F but rather relied on the extra judicial statement of Christian Igwe as evidence against him does not find support from the evidence on record. The Court at page 129 of the Record said:
?The evidence of each of these witnesses is more than sufficient corroboration of the truth of the confessional statements contained in Exhibits ?F?, ?E? and ?E1?. Without much ado, I have no doubt in holding that these exhibits are direct, strong, positive and equivocal enough coupled with corroboration of PW1 to PW5 to convict the accused persons of the offences of conspiracy and robbery. I so hold. The two accused persons herein i.e. Emmanuel Idowu and Christian Igwe are hereby found guilty and are accordingly convicted of the offences of conspiracy and armed robbery as

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charged.?

From all of the above, the inevitable conclusion on this issue is that the Respondent proved its case against the Appellant beyond reasonable doubt. All the ingredients of the offences charged were proved by cogent and credible evidence. The lower Court at page 131 of the Record held thus:
?In the instant case, I hold from the totality of evidence adduced by all the prosecution witnesses that prosecution has satisfied the burden and standard of proof required by Section 138 of the Evidence Act, Cap E4 Vol. VI Laws of the Federation of Nigeria 2004.?

The above finding of the lower Court is supported by the evidence on record.
This issue is therefore resolved against the Appellant.

ISSUE 2
Whether Exhibit F (Appellant?s Confessional Statement) passed the test for a valid confession.
?
Learned Counsel to the Appellant submitted that there is nothing outside Exhibit F to link the Appellant with the crime and that evidence on record show that the statement was neither voluntary, direct, positive nor properly proved. He referred us to the Appellants evidence during the trial within trial to the

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effect that the Appellant signed Exhibit F as a result of torture and other degrading treatment. He emphasized that the trial Court was wrong when it relied on the statement which was retracted and not corroborated to convict the Appellant. He craved in aid the cases of ONOCHIE & ORS. VS. THE REPUBLIC (1966) NMLR 307; HARUNA ISAH VS. THE STATE (2007) 12 NWLR (PT. 1049) 582 AT 608; MUSTAPHA VS. THE STATE (2007) 12 NWLR (PT. 1049) 637 AT 656 and BUBA VS. THE STATE (1992) 1 NWLR (PT. 215) 1 AT 19.

He submitted further that there is nothing on record to show that Exhibit F is corroborated by the evidence of PW1, PW2, PW3, PW4 and PW5 and that there are obvious contradictions and conflicts between the evidence of PW1 ? PW7 and Exhibit F.

He finally urged us to hold that Exhibit F did not pass the test of a confession and as such the trial Court wrongly convicted the Appellant based on his uncorroborated statement.

Learned Counsel to the Respondent placed a different set of arguments before us. She referred to the provisions of Section 28(1) and (2) of the Evidence Act 2011 and the case of OGOALA VS. THE STATE 2 NWLR (PT. 175) 504 to submit

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that a voluntary confession of guilt if fully consistent, probable and coupled with a clear proof that a crime has been committed is satisfactory evidence on which the Court can convict. It is his further submission that the trial Court satisfied itself that Exhibit F was voluntarily made before admitting it in evidence and urged us to hold there is evidence outside Exhibit F to show that it is true. He further argued that the said statement is corroborated by the evidence of PW1 to PW7.

He stressed that the mere fact that the Appellant resiled from Exhibit F or denied it does not render it inadmissible in evidence. He submitted the law is that once a Confessional Statement is proved to have been voluntarily made as in the instant case, it is sufficient to ground a conviction notwithstanding that the Appellant resiled from it or retracted it during trial. He urged us to resolve this issue against the Appellant.

I find it very necessary at this stage to highlight the effect of a Confessional Statement admitted in evidence following a trial within trial.
?A trial within trial as the name suggests is a complete and independent proceedings within

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the main trial for the sole purpose of determining the question of voluntariness of a Confessional Statement. See IBEME VS. THE STATE (2013) LPELR 20138. It is a mini trial where the prosecution and defence give evidence, are cross examined and addresses of Counsel taken. A ruling either upholding or overruling the objection is thereafter delivered. Where the objection is overruled the statement is admitted in evidence and marked as an exhibit.
Once a Confessional Statement is admitted in evidence following a trial within trial it becomes difficult for an Appellate Court to intervene on its admissibility. This is because evaluation of the evidence adduced at the trial is based on the credibility of the witnesses and the duty to evaluate belongs solely to the trial Court. See LASISI VS. THE STATE (2013) 9 NWLR (PT. 1358) 74 AT 96 ? 97 PARAGRAPHS H ? B. Let me add that the findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanor. It is for this reason that I am unable to agree with Appellant?s Counsel that Exhibit F was signed as a result of torture and other

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degrading treatment.

It is trite that a Confessional Statement can be relied upon to convict an accused person where it is voluntary. It is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because it is evidence from the horse?s mouth. There is no better evidence and there is no further proof of commission of the offence. A free and voluntary confession that is direct and positive alone is sufficient to ground and support conviction without corroboration. See ASIMIYU ALARAPE & ORS. VS. THE STATE (2001) 5 NWLR (PT. 705) 79; OZANA UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644.
?
The ruling of the trial Court at the conclusion of the trial within trial is that the Appellant did not make his statement under any inducement or threat. See page 51 of the record. The Court found that the Appellant signed Exhibit F voluntarily. It also held that the evidence of PW1, PW2, PW3 PW4 and PW5 substantially support and corroborate Exhibit F. I have examined the entire record and it is my view that the trial Court restated the law on Confessional Statements correctly and rightly applied

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it. There is no contradiction or conflict between the evidence of PW1 ? PW7 and Exhibit F. I absolutely have no reason to disturb the lower Court?s findings on this issue.

Exhibit F is a Confessional Statement within the meaning of Section 28(1) and (2) of the Evidence Act 2011 and was properly examined before it was admitted in evidence. There is evidence outside Exhibit F to show that its contents are true. It is therefore safe to conclude as done by the trial Court that the Appellant had the opportunity to commit the offences for which he was charged. In the circumstance it is my view and I so hold that Exhibit F passed the test for a valid confession.

The contention of the learned Counsel to the Appellant that there is nothing outside Exhibit F to link the Appellant with the crime is at variance with the evidence on record and I so hold.
This issue is again resolved against the Appellant.

ISSUE 3
Whether the trial Court was right when it discarded the defence of alibi raised by the Appellant.
?
Learned Counsel to the Appellant drew our attention to the fact that the Appellant in his defence raised an alibi on his

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where about on the 6th of May, 2015 while the armed robbery was going on. He submitted the law is that once an alibi is promptly and properly raised, the burden is on the prosecution to investigate and rebut it. He relied on the cases of ADEDEJI VS. THE STATE (1971) 1 ALL NLR 75; SALAMI VS. THE STATE (1988) 3 NWLR (PT. 85) 670 and GACHI VS. THE STATE (1965) NMLR 333.

He argued that the trial Court failed to consider and evaluate the alibi raised by the Appellant. He said the Appellant testified as to his whereabouts during the proceeding at his trial on 29th of January, 2008. He also raised the issue of alibi in his extra judicial statement dated 6th of May, 2005 (Exhibit A) but according to him the trial Court failed to properly evaluate the alibi. He submitted the trial Court failed to objectively consider the credibility of the Appellant?s evidence which placed him at the express way toll gate amidst drivers and traders at the time the crime was allegedly committed. This failure he said occasioned a miscarriage of justice on the Appellant. He relied on the cases of NDUKWE VS. THE STATE 37 NSCQLR 425; YONOR VS. THE STATE (1965) NMLR 337 and

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PATRICK NJOVENS VS. THE STATE (1973) 1 NMLR 331. He further argued that there was no visual and/or positive identification that placed the Appellant at the scene of crime. He cited the case of ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 130 to support his argument that the implication of failure of a trial Court to consider the case put up by a party is that the party?s fundamental right to fair hearing as guaranteed under Section 36(1) of the Constitution of Nigeria (as amended) has been violated and urged us to set aside the judgment of the trial Court.

In his response learned Counsel to the Respondent cited the case of ADEYEMI VS. THE STATE (2011) 5 NWLR (PT. 1239) 1 AT 37 PARAGRAPHS C?F to submit that the Appellant had a duty to call evidence to prove that he was elsewhere since the facts in support of his alibi were within his own knowledge. He further urged us to take note of the fact that the Appellant did not raise any alibi which could have been investigated by the police in his Exhibit A and resolve this issue against the Appellant.

The law on alibi is common place. In UKEWUNNENYI & ANR. VS. THE STATE 4 NWLR (PT. 114)

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PAGE 131 AT 144, the Supreme Court held as follows:
?It is well settled that the defence of alibi where successful, results in the acquittal of the accused relying on the defence. It is a claim absence of both actus; not only that it is not reus, but also that there was in fact not act. It is also a defence of absence of mens rea. A defence of alibi by the accused is a combined defence of lack of act and mens rea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. There is no doubt that such a defence being a matter particularly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI VS. THE STATE (1965) NMLR 33; ODIDIKA VS. THE STATE (1977) 2 SC 21 . . . The best defence and evidence of an alibi is one pleaded at the very first opportunity and not at the time of trial.?
Obaseki, JSC (of blessed memory) in his concurring judgment at page 149 also explained thus:
“Alibi is a powerful defence for the innocent if true but gives no protection to the guilty if untrue. When it is raised at the

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investigation stage, it is a bounding duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed). See GACHI V. THE STATE (1965) NMLR 333; NTAM VS. THE STATE (1968) NMLR 86; BOZIN VS. THE STATE (1985) 2 NWLR (PT 8) 465; NWABUEZE VS. THE STATE (1988) 4 NWLR (PT 86) 16 … If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in Court, he has an uphill task of convincing the trial judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime”
From the above, it can be deduced that the basic rules and particulars on which a valid plea of alibi must stand include (a) the specific place/places where the accused was (b) the people in whose company he was and (c) what if any, transpired at the said time and place. While particulars (a) and (b) must be jointly met before the plea stands, particular (c) is optional.
?Furthermore, in

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NWABUEZE VS. THE STATE (1988) 4 NWLR (PT. 86)16, the Apex Court said:
“The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals. In sum, in establishing the defence of alibi, it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked. Where he fails to discharge that basic duty, he cannot avail himself of the defence”.
It is thus the law that the duty of the police to investigate the Appellant?s alibi could only have arisen if he disclosed full particulars of the exact place he was, the time he was there, the person or persons with whom he was or who saw him there. Unfortunately the Appellant did not provide these details in all his extra judicial statements and his evidence on record.
In CHRISTOPHER OKOSI VS. THE STATE (1989) ALL NLR 170, Oputa JSC held:
?The police are not expected to go on a wild goose chase in order to investigate an alibi. Any accused person

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setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.?
The instant Appellant did not disclose particulars of persons who could serve as witnesses in support of his alibi. He failed to mention their names to enable the police contact them. Obviously his failure rendered the defence of alibi unavailable to him and I so hold.
I have gone through the entire gamut of the record and I cannot find any information furnished by the Appellant capable of investigation by the police. I observe there is stronger evidence against the Appellant on his alibi.
The Respondent led credible evidence which fixed the Appellant at the scene of crime. His alibi is of no moment and I so hold. It is assailable, lacks credibility and riddled with holes. The Appellant who failed to establish he was somewhere else when the crime was committed cannot rely on the defence of alibi. The defence of alibi fails and I so hold.
This issue is resolved against the Appellant.

ISSUE 4
Whether an identification parade

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was necessary to identify the Appellant.

Learned Counsel to the Appellant submitted that there is no cogent or tangible evidence from the Respondent to identify the Appellant at the scene of crime. He relied on the case of THE STATE VS. AIBBANGBEE (1983) 3 NWLR (PT. 84) 548 on what constitutes identification of an accused person to support his submission. He emphasized that none of the Respondent?s witnesses testified that they identified the Appellant as one of the armed robbers. He said he was therefore convicted in error. He urged us to resolve this issue of identification against the Respondent.
?
In her response, learned Counsel to the Respondent submitted that evidence on record point to the irresistible conclusion that the Appellant participated in the robbery of 6th of May, 2005. He said the Appellant himself admitted taking Igwe, Romeo and Yinusa to the house of Agbalabi where they stayed until about 1:00am. He admitted going out to a house at about 1:30am where the occupants threw N8, 000.00 out of the window. This evidence is corroborated by PW1 and PW2. The Appellant stated that they ransacked the house of the victim and went away

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with his gun. The Appellant was the one that led the police to the house where PW1?s gun was eventually recovered. It is Counsel?s contention that the above pieces of evidence show that the Appellant identified himself as one of the armed robbers that robbed PW1 and PW2 and as such no further identification parade was necessary.

On when an identification parade is necessary, the Supreme Court in the case of WISDOM VS. THE STATE (2017) 7 NWLR (PT. 1586) PAGE 446 AT 468 PARAGRAPHS B ? F held as follows:
?In AKEEM AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1336) 619 (2013) 85 SCM 157 (2013) ALL FWLR (PT. 714) 139. In this Court, I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused. An identification parade would become necessary only in the following situations of visual identification:
(i) Where the victim did not know the accused person before and his first

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acquaintance with him is during the commission of the offence;
(ii) Where the victim was confronted by the offender for a very short time and;
(iii) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused. See R V TURNBUL (1976) 3 ALLER 549 (1997) QB 224 AT 228; IKEMSON & ORS. VS. THE STATE (1989) 1 CLRN 1 (1989) 3 NWLR (PT. 110) 455.?
It seems to me that the present situation does not fall within the ambit of the above authority because none of the prosecution witnesses saw or claimed they saw the Appellant committing the offence of armed robbery that fateful night. Identification parades are meant for witnesses who actually saw something significant and not those who did not see anything. This case is not one for identification parade.
?The Confessional Statement of the Appellant, Exhibit F has also made it unnecessary. The Appellant through his Confessional Statement placed himself at the scene of the armed robbery and narrated explicitly his role in the events that played out. The law is that in a situation where an accused person himself places himself at

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the scene of crime during the crime, an identification parade is unnecessary. See the case of THE STATE VS. SALAWU (2011) 8 NWLR (PT. 1279) PAGE 580 AT 616 PARAGRAPHS B ? C, where the Supreme Court held:
?It is settled law that it is not in all criminal cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for further identification parade. Identification is the means of establishing whether a person charged with the offence is the same person who committed the offence.?
?The Appellant who in his Confessional Statement admitted participating in the robbery and who gave detailed account of his level of participation prior to, during and after the incident needs no further identification as the person who committed the crime. I have no hesitation in coming to the conclusion that an identification parade was not necessary in this case. There is therefore no reason to disturb the findings of

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the lower Court on this point.
This issue is resolved against the Appellant.

Having resolved all issues in this appeal against the Appellant, the resultant effect is that this appeal lacks merit and should be dismissed. Appeal is hereby dismissed. I affirm the judgment of the Oyo State High Court sitting in Ibadan in charge No: I/25C/ 2006 delivered on the 20th of January, 2009.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

It is clear from the testimony of the prosecution witnesses and the confessional statement of the Appellant including the material exhibits recovered from the accused persons, it is beyond argument that the Appellant was credibly linked to the offence charged. To that extent, the defence of alibi feebly raised by the Appellant was totally dismantled. See Agogovie v. State (2016) LPELR-40501 (SC) and Osuagwu v. State vol. 53 NSCQR at 562. The Appellant was therefore rightly convicted of the crimes of conspiracy to commit armed robbery and for armed robbery.

?I therefore agree with my learned brother that the

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appeal has no merit. It is accordingly dismissed.

NONYEREM OKORONKWO, J.C.A.: Identification is “the Process of showing, proving or recognizing who or what somebody or something is”. The complainant in this case had the harrowing experience of facing belligerent armed robbers one of whom he boldly engaged in a struggle for his gun during which scuffle the gun triggered off making the armed robbers flee. In such situation, the complainant could hardly be mistaken as to who his assistant was. A trial Court could also hardly be mistaken if it accepted such evidence.

For the above reason and others highlighted in the lead judgment of my lord Folasade Ayodeji Ojo JCA, I associate myself with the said judgment and the result.

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Appearances:

Abiola Adegoke, Esq.For Appellant(s)

O.O. Ogundele (Mrs.) with her, Adeleke Shukrah, Ismail Abdullateef and Ntibi JoyFor Respondent(s)

 

Appearances

Abiola Adegoke, Esq.For Appellant

 

AND

O.O. Ogundele (Mrs.) with her, Adeleke Shukrah, Ismail Abdullateef and Ntibi JoyFor Respondent