FAFUNSO v. STATE (2022)

   FAFUNSO v. STATE

(2022)LCN/16546(CA)

In  The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/IB/160C/2019

Before Our Lordships:

YargataByenchitNimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

SEUN FAFUNSO APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

THE TRIAL COURT CAN SOLELY RELY ON THE CONFESSIONAL STATEMENT

It was also contended that the law is that the trial Court can solely rely on the confessional statement of an accused person to convict him. The case of AKPA v STATE (2008) 8 SCM 68, was cited and relied upon. It was pointed out that after an objection was raised to the voluntariness of the confessional statements of the Appellant, the trial Court had held a trial within trial to establishthe voluntariness of the Appellant’s statements before they were admitted as exhibits. The case of JIMOH v THE STATE (2014) 11 SCM 216; OGUDO v THE STATE (2011) 11–12 SCM (Pt.1) 209 at 212; LASISI v THE STATE (2013) 6 SCM 97 at 113; OSENI v STATE (2012) 4 SCM 150 at 153, per Nguta, JSC at page 66, paras. B–E, were cited. ABBA BELLO MOHAMMED, J.C.A.

A CHARGE OF CONSPIRACY WILL AUTOMATICALLY FALL WHERE THE SUBSTANTIVE OFFENCE HAS NOT BEEN ESTABLISHED

It is settled that the proper approachin deciding criminal cases where the charge contains the offences of conspiracy and a substantive offence, is to first deal with the substantive offence before determining how far the offence of conspiracy had been made out by inference from the substantive offence. This is because a charge of conspiracy will automatically fail where the substantive offence has not been established. See: AGUGUA v THE STATE (2017) LPELR-42021(SC), per Ariwoola, JSC at page 13, para. A; OSETOLA & ANOR v STATE(2012) LPELR-9348(SC), per Ariwoola, JSC at pages 27–28, para. E; and JIMOH v THE STATE (2019) LPELR-48089(CA), per Talba, JCA at pages 17–18, para. F. ABBA BELLO MOHAMMED, J.C.A.

THE ONUS IS ON THE PROSECUTION TO PROVE THE OFFENCE CHARGED BEYOND REASONABLE DOUBT IN CRIMINAL TRIALS

It is elementary law that in criminal trials, the onus ​is on the prosecution to prove the offence charged beyond reasonable doubt. See: Section 135(1) & (2) of the Evidence Act, 2011 and ISAH v STATE (2017) LPELR-43472(SC),per Peter-Odili, JSC at pages 28–29, para. F; and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13–17, paras. C–C. ABBA BELLO MOHAMMED, J.C.A.

PROOF BEYOND REASONABLE DOUBT DOES NOT HOWEVER MEAN PROOF BEYOND ALL SHADOW OF DOUBT

Proof beyond reasonable doubt does not however mean proof beyond all shadow of doubt; rather it means no more than evidence strong enough to leave only a remote possibility in the defendant’s favour which can be dismissed with the sentence: “of course it is possible, but not in the least probable.” See: MILLER v MINISTER OF PENSIONS (1947) 2 All ER 372; and BAKARE v THE STATE (1987) LPELR-714(SC), per Oputa, JSC at pages 10–11, para. D–D. ABBA BELLO MOHAMMED, J.C.A.

THE INGREDIENTS REQUIRED FOR THE PROSECUTION TO ESTABLISH BEYOND REASONABLE DOUBT

It is trite that in a charge of armed robbery such as the one in the case of the Appellant, the Prosecution is required to establish beyond reasonable doubt the following ingredients:
(i) that there was a robbery or series of robberies;
(ii) that the robbery was an armed robbery;
(iii) that the Appellant was one of those who took part in the armed robbery. ABBA BELLO MOHAMMED, J.C.A.

THE SETTLED LAW ON A COMPLAIN AGAINST A SPECIFIC FINDING OF THE TRIAL COURT

It is settled law that an Appellant who complains against a specific finding of the trial Court must make such finding a ground of his appeal from which an issue can then be distilled for determination. See: AJIBONA v KOLAWOLE & ANOR (1996) LPELR-299(SC), per Ogwuegbu, JSC at page 11, para. B; OSOLU v OSOLU & ORS (2003)LPELR-2810(SC), per Musdapher, JSC (as he then was) at page 35, para. E; MBANG v STATE (2013) 7 NWLR (Pt. 1352) 48 at 67; and OSAMWONYI v OGUNSUYI (2021) LPELR-56032(CA), per Ekanem, JCA at page 11, para. A. ABBA BELLO MOHAMMED, J.C.A.

OMNIBUS GROUND OF APPEAL ONLY COMPLAINS AGAINST THE TOTALITY OF THE EVIDENCE LED AT TRIAL

It is trite that an omnibus ground of appeal only complains against the totality of the evidence led at trial. It cannot be relied upon to challenge specific findings of fact or errors of law: AKINLAGUN & ORS v OSHOBOJA & ANOR (2006) LPELR-348(SC), per Kalgo, JSC at page 19, para. A; and AJIBONA v KOLAWOLE & ANOR (1996) LPELR-299(SC), per Ogwuegbu, JSC at page 11, para. B. The failure to challenge on appeal a specific finding of the trial Court makes same subsisting and binding on the parties. See:ADEJOBI& ANOR v STATE (2011) LPELR-97(SC), per Galadima, JSC at page 21, para. E; DASUKI v FRN (2018) LPELR-43897(SC), per Eko, JSC at page 12, para. A; and OSAMWONYI v OGUNSUYI (supra). By failing to appeal against the specific finding of the trial Court rejecting the Appellant’s defence of alibi, the Appellant had conceded that the said finding of the trial Court is correct and therefore is binding on him. I so hold. ABBA BELLO MOHAMMED, J.C.A.

THE NECESSITY OF AN IDENTIFICATION PARADE

The law on identification parade is legion, in that an identification parade is only necessary where an accused is not arrestedat the scene of the crime or shortly thereafter, and was not well known to the victim or any of the victims. An identification parade is also essential whenever there is a dispute or uncertainty as to the identity of the robber or there is a doubt about the possibility of a witness recognizing an accused person during the commission of the crime. See: OGOALA v STATE (1991) LPELR-2307 (SC), per Nnaemeka-Agu, JSC at page 13, para. A; AJAYI v STATE (2014) LPELR-23027(SC), per Muhammad, JSC at 20–21, para. C; and SADIKU v STATE (2013) LPELR-20588 (SC), per Aka’ahs, JSC at page 15, paras. A. ABBA BELLO MOHAMMED, J.C.A.

THE METHODS BY WHICH THE COMMISSION OF A CRIME CAN BE ESTABLISHED

It is trite that the commission of a crime is established through any or all of three methods which are: (i) by direct evidence of eye witness(es); (iii) by confessional statement; (iii) by circumstantial evidence. See: ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E–E; and OGOGOVIE v THE STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B. ABBA BELLO MOHAMMED, J.C.A.

THE EVALUATION OF EVIDENCE ND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY FUNTION OF THE TRIAL COURT

In any event, evaluation of evidence and ascription of probative value thereto, is the primary function of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. Thus, not having been challenged and shown to be improper or perverse by the Appellant, this Court has no vires to interfere with it: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E. ABBA BELLO MOHAMMED, J.C.A.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): In a judgment in Suit no. HCT/3R/2013, delivered on 21st February, 2019, the High Court of Oyo State (the trial Court), convicted the Appellant of the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004, and sentenced the Appellant to death by hanging. The judgment of the trial Court is at pages 68–83 of the Record of Appeal.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court vide an original Notice of Appeal filed on 18th March, 2019, which is at pages 84–86 of the Record of Appeal. The Notice of Appeal was however amended vide Amended Notice of Appeal filed on 5th July, 2021 and deemed properly filed by this Court on 21st September, 2021. The Record of Appeal was duly transmitted to this Court on the 18th of April, 2019.

​Parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument was filed on the 5th of July, 2021, and same was deemed properly filed on the21st of September, 2021. The Respondent’s Brief of Argument was filed on the 14th of January, 2022 and deemed properly filed on the 19th of January, 2022. The Appellant also filed a Reply Brief on the 19th of January, 2022.

On the 19th of January, 2022 when the appeal was heard, parties adopted their respective briefs of argument.

In the Appellant’s Brief of Argument, the following sole issue was distilled for determination:
1. Whether the Prosecution on the totality of the evidence adduced at the trial proved the ingredients of the offence of armed robbery and the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.

​Per contra, the Respondent, who claimed in the opening of paragraph 3.01 of the Respondent’s Brief of Argument to have formulated two issues, ended up only raising the following single issue for determination:
1. Whether the admission and the reliance on the Appellant’s confessional statement and the testimony of PW1 by the trial Court was wrong when convicting the Appellant for the offences of conspiracy to commit armed robbery and armed robbery, havingconsidered the defence of alibi raised by the Appellant.

I have considered the issues respectively raised by the parties. It seems to me that the Respondent’s issue as couched can be comfortably subsumed into the Appellant’s sole issue, which calls for a holistic determination of whether the trial Court was right when it held that the Prosecution has established its case against the Appellant beyond reasonable doubt and convicted the Appellant. For this reason, I shall adopt the sole issue raised by the Appellant, albeit with a little modification as follows:

SOLE ISSUE FOR DETERMINATION:
Whether the trial Court was right when it held that on the totality of the evidence adduced, the Prosecution has proved the ingredients of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt and convicted the Appellant.

APPELLANT’S SUBMISSIONS:
Learned Counsel for the Appellant submitted that the trial Court erred in law in holding that the Prosecution proved the charges of armed robbery and conspiracy to commit armed robbery against the Appellant. He pointed out thatthe Prosecution had alleged that the Appellant armed with gun had robbed the shop of the victim and was arrested by the victim when she knocked the gun out of his hand and held his clothes and called for help until passersby and neighbours held the Appellant while the Appellant’s co-conspirators escaped. He contended that the burden of proof in criminal cases is on the Prosecution to establish the elements of the offences charged beyond reasonable doubt. He citedOBASANJO EGHARVEBA v THE STATE (2016) LPELR–40029 (SC). He added that for an accused to be convicted of the offence of armed robbery certain elements must be proved and where any of the elements are not met, the Prosecution cannot be said to have proved its case. He referred to Section 135 of the Evidence Act and cited the cases of OGUDO v THE STATE (2011) LPELR–860 (SC); BOZIN v THE STATE (1985) 2 NWLR (Pt. 3) 465; ALABI v THE STATE (1993) 7 NWLR (Pt. 307) 511 at 523; and BELLO v THE STATE (2007) 10 NWLR (2017) 10 NWLR (Pt. 1043) at 664, where the elements of armed robbery were stated.

​Learned Counsel argued that the Prosecution had failed to prove the ingredients of armed robbery. He explained that as identified by the lower Court, relying on the case of BALOGUN VS. OGUN STATE (2001) FWLR (Pt. 78) 1077, an important element of the offence of armed robbery as stated in the Robbery and Firearms Act LFN 2004 is that of stealing before or after threat to use force against any person or property in order to retain the thing stolen or to prevent or overcome resistance to its being stolen or retained must have occurred. He cited ONIMISI UKOMA (ALISA JAGUDA) v COP BENUE STATE (1995) 9 NWLR (Pt. 410) to 5 (CLARK & ANOR. v STATE (1986) NWLR (Pt. 35) 381.

​Counsel argued that the lower Court had failed to consider all the evidence before convicting the Appellant. He pointed out that the Prosecution had relied on the evidence of PW1 who alleged that there was a robbery at her store in which mobile phones, the sum of N14,250.00 (Fourteen Thousand Two Hundred and Fifty Naira) as well as clothes and shoes were stolen, thus meeting the requirement of establishing the first elements of the offence of armed robbery. He added that the testimony of PW1 also indicated that one of the assailants was armed with a locally made double barrelpistol with which the robbery operation was carried out, thus establishing the second ingredient. He however argued that the Prosecution failed to establish the third ingredient as to whether the Appellant was the one who committed the offence of armed robbery or that he took part in its commission. He posited that the Prosecution did not lead credible evidence which linked the Appellant with the said armed robbery.

Learned Counsel for the Appellant further submitted that the Appellant had raised a defence of alibi and given detailed explanation of his whereabouts by stating that he was not arrested by PW2, but by some men in khaki clothes at Chelsea Bus Stop on his way to the General Hospital, Idi-Iroko. Counsel submitted that where the defence of alibi is raised and strong evidence exists in support thereof, the defence cannot fail. He cited EBENECHI v STATE (2007) 6 NWLR (Pt. 1138) 431 at 440; and UBANI v STATE (2003) 18 NWLR (Pt. 831) 224. He observed that the trial Court had relied on the cases of ATTAH VS. STATE, (2010) 3 NWLR (Pt. 2) 392 and WASIRI VS. STATE (1988) 1 NWLR (Pt. 70), to disregard the alibi of the Appellant, stating that it was anafterthought and not given to the police at the earliest opportunity. He argued however, that the Appellant could not raise the defence of alibi at the earliest opportunity because his statement was obtained under duress.

​Counsel pointed out that the Appellant’s Counsel had objected to the admissibility of the statement of the Appellant at trial on the same ground which resulted in a trial within trial which was ultimately wrongly determined in favour of the Respondent. He argued that the Prosecution had failed to ascertain beyond reasonable doubt whether the Appellant was indeed apprehended by the PW2, as there were contradictions between the statement of the PW2 at trial and her statement to the Police, as she stated in her statement to the police that the Appellant was apprehended by her inside the shop but at trial, she stated that he was apprehended outside her shop where she grabbed him by his collar at first and then by his trouser when he was trying to flee on top a motor-cycle. Counsel argued that the trial Court did not resolve the material contradiction of the location of the apprehension of the alleged assailant that was apprehendedby PW2 and failed to caution itself to its effect. He cited BISI v STATE (2018) LPELR–44821 (CA); ELUJI KINSLEY EZE v THE STATE (2013) LPELR 2066 (CA); and AGBO v THE STATE(2006) 6 NWLR (Pt. 977) 543, and submitted that the place of apprehension of the alleged assailant is important as the contradiction had cast doubt in the evidence of the Prosecution at trial and also cast on PW1 testimony as to the certainty of the identity of the assailant who attacked her and also on her statement to the police and her evidence before the trial Court. He argued that the failure of the Prosecution to identify who in particular was apprehended by PW2 is of utmost importance as it goes to the root of identification of the persons who committed the alleged offence of armed robbery. He cited IGBO v STATE (1975) 11 SC 129; and EMINI & ORS. v STATE (1992) NWLR (Pt. 256) 2628, to the effect that where there are material contradictions in the evidence of the prosecution, the contradictions must be settled in favour of the accused. Counsel urged the Court to set aside the decision of the lower Court, having attached undue weight to the evidence of the PW1 despite thefact that they contained material contradictions which were never clarified KALU v STATE (1988)1 NWLR (Pt. 90) 503 at 510 (F–G).

On the charge of conspiracy, learned Counsel submitted that it was wrong for the trial Court to hold that same was successfully proved by the Prosecution. He contended that the gist of the offence of conspiracy is in the meeting the minds of the conspirators to commit an offence. He cited ADEJOBI v STATE (2011) NWLR (Pt. 1267) 347; and FATAI BUSARI v THE STATE (2015) LPELR–24279. He pointed out that the trial Judge had observed that the evidence of PW1 and the statement of the defendant constitute the ingredients of the offence of conspiracy to commit armed robbery, but the Respondent had failed to show how the Appellant and the alleged robbers had a meeting of the minds or agreed to commit an offence in the circumstance. He cited ADEYEMO v STATE (2011) 12 WRN 158; USUFU v STATE (2007) 1 NWLR (Pt. 1020) 94 at 113–114, and argued that the Prosecution had failed to discharge the burden placed on them to establish conspiracy to commit armed robbery

​Finally, learned Counsel for the Appellant urged theCourt to hold that trial Court had failed to properly evaluate the evidence before it especially that of PW1 and PW2 which are riddled with material contradictions that should have been determined in favour of the Appellant. He urged the Court to allow the appeal, set aside the judgment of the trial Court and discharge and acquit the Appellant of the offences of conspiracy to commit armed robbery and armed robbery.

RESPONDENT’S SUBMISSIONS:
In his counter submissions, learned Counsel for the Respondent contended that the onus is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. He cited ABIRIFON v THE STATE (2013) 9 SCM 165; and NWATURUOCHA v STATE (2011) 12 SCM (Pt. 72) 265 at 269. He added that where a defendant is charged with a substantive offence and the offence of conspiracy, the substantive must be first considered.

Learned Counsel cited and relied on OSETOLA v STATE (2012) 12 SCM (Pt. 2) 347 at 365, 306; andOSUAGWU v STATE (2013) LPELR–19823 (SC), per Rhodes-Vivour, JSC, wherein the three ingredients of the offence of Armed Robbery were stated. He submitted that PW1 had establishedbeyond reasonable doubt that there was a robbery at PW1’s shop along Iju-Ota/Idiroko Road, Ota, thus proving the first ingredient. He added that the Prosecution also proved the second ingredients of armed robbery beyond reasonable doubt. He stated that the evidence of the PW1 and Exhibits B, B–B1, all satisfy the burden placed on the Prosecution to prove that ingredient. He pointed out that the Appellant was apprehended by the victim herself before passersby came along. Counsel also pointed to the confessional statements of the Appellant which gave details of his role in the armed robbery. He argued that the mere fact the Appellant had denied being in possession of gun at the time of the robbery does not disprove the armed robbery as long as the Appellant was among those armed at the time of the robbery.

​Counsel contended that it is trite that the identity of the accused person is very important, but it is where the identity of an accused person is uncertain that identification parade should be conducted. He pointed out that in this instant case an identification parade is unnecessary as PW2 who is the victim established the identity of theAppellant and others who robbed her while armed with gun. He citedADEYEMI v STATE (2014) 11 SCM 1; and ADEBAYO v STATE (supra) at 35, and submitted that a Court can act on the evidence of a single witness if the witness has given credible evidence of which corroboration is not required by law. He relied on NKEBISI & ANOR. v STATE (20) 3 SCM 170 at 174.

It was also submitted on behalf of the Respondent that there were no contradictions in the evidence of the PW2 before the lower Court, and to succeed in upturning the decision of the lower Court on the ground of contradictions or discrepancies in evidence, it must be such that has caused miscarriage of justice. It was argued that there are no material contradictions in the evidence of the Prosecution witnesses.

It was also contended that the law is that the trial Court can solely rely on the confessional statement of an accused person to convict him. The case of AKPA v STATE (2008) 8 SCM 68, was cited and relied upon. It was pointed out that after an objection was raised to the voluntariness of the confessional statements of the Appellant, the trial Court had held a trial within trial to establishthe voluntariness of the Appellant’s statements before they were admitted as exhibits. The case of JIMOH v THE STATE (2014) 11 SCM 216; OGUDO v THE STATE (2011) 11–12 SCM (Pt.1) 209 at 212; LASISI v THE STATE (2013) 6 SCM 97 at 113; OSENI v STATE (2012) 4 SCM 150 at 153, per Nguta, JSC at page 66, paras. B–E, were cited.

On the Appellant’s argument over alibi, Counsel submitted that same was not raised by the Appellant at the earliest opportunity and the police cannot investigate an alibi raised for the first time at trial or during trial. He cited WASIRI UMANI v THE STATE (1988) 2 SC 88, and submitted that the requirement is for the Appellant to inform the police of his alibi at the earliest opportunity and furnish the police with detailed particulars of his whereabouts so that it can be properly investigated, but this was not done; rather it was raised during trial. He argued that the alibi was an afterthought which the trial Court cannot rely upon. He cited ATTAH v THE STATE (2010) 3 NWLR (Pt. 711) 392; and OKOLO OCHEMAJO v STATE (2008) 10 SCM 103 at 107.

​On the argument over conspiracy raised by the Appellant, learned Counsel referred to the definition of conspiracy in Black’s Law Dictionary, 7th Edition, page 305, as well as the cases of BELLO v THE STATE (2010) 2 SCM (Pt. 72) 28 at 34; and NWOSU v STATE (2004) 15 NWLR (Pt. 897), para. F–H. He submitted that the evidence before the trial Court was that two armed robbers came to rob the PW2 in her shop on the 22nd May, 2008, also, the Appellant in his confessional statement that they were two who robbed PW2. He argued that this indicates that there was meeting of the minds between the Appellant and his accomplice and the Appellant acted in common with the other gang member to rob PW1.

On the whole, learned Counsel for the Prosecution submitted that the Prosecution had discharged the burden of proof placed on it by law beyond reasonable doubt which is not proof beyond all doubt. Relying on the dictum of Denning J in MILLER v MINISTER OF PENSION (1997) 3 All ER 37; UGO v COP(1972) 11 SC 37; AMEH v THE STATE (1978) 6–7 SC 20; and DIBIE v THE STATE (2007) SCM 101 at 118–119, he urged the Court dismiss this appeal for lack of merit and affirm the decision of the trial Court.

APPELLANT’S REPLY:
The Appellant virtually restated his arguments contained in his Brief of Argument which is not the essence of a Reply Brief. It is not meant for an Appellant to have a second bite at rearguing his case, but to respond to new issues that had been raised in the Respondent’s Brief of Argument. See: HARKA AIR SERVICES (NIG) LTD v KEAZOR (2011) All FWLR (Pt. 591) 1402, per Adekeye, JSC at page 1415;CAMEROONAIRLINES v MIKE OTUTUIZU (2011) LPELR-827(SC). The effect of a Reply which tends to reargue the party’s case is that it is incompetent and must be discountenanced: ONUAGULUCHI v NDU(2000) 11 NWLR (Pt. 590) 204; and ACB LTD v APUGO (1995) 6 NWLR (Pt. 399) 65. Accordingly, the Appellant’s Reply Brief which reargues the Appellant’s case is hereby discountenanced.

RESOLUTION OF THE SOLE ISSUE:
Before the trial Court, the Appellant was charged with the offences of conspiracy to commit armed robbery and armed robbery, contrary to Sections 6(6)(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. It is settled that the proper approachin deciding criminal cases where the charge contains the offences of conspiracy and a substantive offence, is to first deal with the substantive offence before determining how far the offence of conspiracy had been made out by inference from the substantive offence. This is because a charge of conspiracy will automatically fail where the substantive offence has not been established. See: AGUGUA v THE STATE (2017) LPELR-42021(SC), per Ariwoola, JSC at page 13, para. A; OSETOLA & ANOR v STATE(2012) LPELR-9348(SC), per Ariwoola, JSC at pages 27–28, para. E; and JIMOH v THE STATE (2019) LPELR-48089(CA), per Talba, JCA at pages 17–18, para. F. The approach to deciding this appeal must therefore start with a determination of the propriety of the trial Court’s finding on the substantive offence of armed robbery before determining whether the offence of conspiracy was properly sustained by the trial Court.

It is elementary law that in criminal trials, the onus ​is on the prosecution to prove the offence charged beyond reasonable doubt. See: Section 135(1) & (2) of the Evidence Act, 2011 and ISAH v STATE (2017) LPELR-43472(SC),per Peter-Odili, JSC at pages 28–29, para. F; and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13–17, paras. C–C.

Proof beyond reasonable doubt does not however mean proof beyond all shadow of doubt; rather it means no more than evidence strong enough to leave only a remote possibility in the defendant’s favour which can be dismissed with the sentence: “of course it is possible, but not in the least probable.” See: MILLER v MINISTER OF PENSIONS (1947) 2 All ER 372; and BAKARE v THE STATE (1987) LPELR-714(SC), per Oputa, JSC at pages 10–11, para. D–D.

It is trite that in a charge of armed robbery such as the one in the case of the Appellant, the Prosecution is required to establish beyond reasonable doubt the following ingredients:
(i) that there was a robbery or series of robberies;
(ii) that the robbery was an armed robbery;
(iii) that the Appellant was one of those who took part in the armed robbery.
See: OGU v COP (2017) LPELR-43832(SC) per Kekere-Ekun, JSC at pages 23–24, para. F; STATE v FADEZI(2018) LPELR-44731(SC) per Sanusi, JSC at pages 10–11, para. E; OSUAGWU v STATE (2016) LPELR-40836(SC), per Nweze, JSC at pages 12–13, para. E; and ATTAH v STATE (2010) LPELR-597(SC), per Adekeye, JSC at page 38, para. A.

​In this appeal, the first contention of the Appellant at paragraphs 4.7 – 4.19 of his Brief of Argument is that whilst the trial Court had found that the first and second ingredients of the offence of armed robbery were proved, the trial Court was wrong to have relied on the evidence of PW1 that the Appellant was the one who robbed her, when in his evidence the Appellant had that he was not at the scene and had given a detailed account of his whereabouts and stated that he was arrested by some men in khaki at Chelsea Bus Stop along Idiroko Road where he went to meet his mother who was to accompany her sister that had just given birth to a child. It was argued that the Appellant was unable to raise his defence of alibi at the earliest opportunity because his evidence at the police station was obtained under duress. It was further argued that the evidence of PW1 where in her statement to the police she said the Appellant was apprehended by her inside her shop but attrial she stated that she the Appellant was apprehended outside the shop was a material contradiction all of which the trial Court failed to consider.

A look at the trial Court’s finding on the third ingredient of whether the Appellant was one of those that participated in the armed robbery shows that the learned trial Judge had duly considered the evidence led by the Prosecution, as well as the alibi defence of the Appellant which he raised at the trial. In particular, the learned trial Judge had in the judgment reproduced in detail at pages 72–73 of the Record of Appeal the evidence of the Appellant on oath, where the Appellant stated that he was not arrested by PW1 but by people who were clad in khaki material at Chelsea Bus Stop after Canaan Land along Idiroko Road, where he went to meet his mother to accompany her to meet her sister who had given birth. The learned trial Judge had then reproduced the testimony of PW1 at page 75 of the Record of Appeal and even considered the argument of learned Counsel for the Appellant that there was contradiction in the evidence of PW1.

At page 74 of the Record, the learned trial Judge held asfollows:
“As stated earlier, the Prosecution relies on the eye witness account of PW1 and the confessional statements admitted at the trial as Exhibits A and C to prove the guilt of the Defendant.
It is indeed the law as submitted by the Prosecution that direct oral evidence of a single witness suffices to establish the commission of a crime where such evidence is of sufficient probative value.
The eye witness account of PW1 shows that she stated that the defendant and another person at large came to rob her and it was the defendant who held the gun and that she jumped on the defendant and struggled with the gun with him till the other robber took off on the motorcycle the robbers brought, but that she gripped the Defendant by his top collar and later by his trousers and was dragged by the Defendant outside till passers-by attracted by her shouts for help assisted in accosting and arresting the Defendant and his later transfer to the Police Station.
Does this evidence lack probative value as submitted by the defence Counsel because PW1’s evidence was contradictory that she arrested the Defendant in her shop and outside the shop aswell?
An understanding of the excerpted portion of PW1’s evidence which is hereunder reproduced will show that there was no contradiction in her evidence as what she stated was that she jumped on the gun held by the Defendant in her shop and she held onto it while the Defendant was trying to take the gun away which caused him to drag her with the gun outside which caused the gun to fall on the ground and for her to transfer her grip to his top and subsequently to his trousers till passers-by and neighbours came to assist in arresting the Defendant.”

The learned trial Judge then reproduced the evidence of PW1 at page 75 of the Record before holding at page 76 of the Record that:
“I also agree with the learned State Counsel that his evidence on oath in which he raised an alibi that he was arrested elsewhere is an afterthought and was not given to the police at the earliest time.”

A look at the Record of Appeal shows at pages 64–65 that the Appellant only raised a defence of alibi at trial. It is settled law that for a defence of alibi to be successfully raised, it must be raised at the earliest opportunity when the defendant isconfronted with the commission of the crime, in order to afford the Police the opportunity of investigating and debunking same if they could: DAWAI v STATE (2017) LPELR-43835(SC), per Okoro, JSC at pages 15–16, para. C; ADEYEMI v STATE (2017) LPELR-42584(SC), per Peter-Odili, JSC at page 16, para. A; EBENEHI & ANOR v STATE (2009) LPELR-986(SC), per Ogebe, JSC at page 13, para. A; and MOHAMMED v STATE (2015) LPELR-24397(SC), per Nweze, JSC at page 46, para. D.
It is for this reason that a defence of alibi must be raised when the Police has the opportunity to investigate and counteract same if possible: DAWAI v STATE (supra); ADEYEMI v STATE (supra).  In this case, none of the Appellant’s two statements made to the police which were tendered as Exhibits A and C, contain a defence of alibi. The two statements of the Appellant were confessional statements, of which the learned trial Judge appeared to have also considered in evaluating the defence of alibi put forward by the Appellant. ​By raising an alibi in his testimony at trial, the Appellant had not afforded the Prosecution any opportunity to effectively investigate and counter same.It must be emphasized that adversarial litigation, whether criminal or civil, is fundamentally based on a fair and transparent imaginary scale, which requires that no surprises should be sprung by a party upon his adversary. This fundamental requirement is encapsulated in the natural justice principle of audi alteram partem, whose requirement of fairness demands that the all sides must be heard, or at least given the opportunity to be heard on every issue before the issue is determined. See: CBN v AKINGBOLA & ANOR (2019) LPELR-48807(SC), per Rhodes-Vivour, JSC at page 15, para. C. Since a defence of alibi is a matter exclusively within the knowledge of the accused person who raises it, he must therefore, raise it at the earliest opportunity when he is confronted with the commission of the offence to enable the other side to investigate same and be able to respond to it. Therefore, an alibi raised at trial, as has been done by the Appellant in this case, is an exercise in futility and the trial Court is bound to disregard and discountenance same. This position was reaffirmed in SMART v STATE (2016) LPELR-40827(SC), where the Supreme Court, perRhodes-Vivour, JSC held at page 24, para. D, as follows:
“An alibi is raised by the accused person and investigated by the Police before trial and not during trial. It is wrong for the Appellant to raise the defence of alibi for the first time during trial. Such antics denies the police the opportunity to investigate it. The alibi which was raised for the first time during trial was correctly ignored, and both Courts below were right in this regard.”
See also: KOLADE v STATE (2017) LPELR-42362(SC), per Sanusi, JSC at pages 50–52, para. F; AGU v STATE (2017) LPELR-41664(SC), per Sanusi, JSC at pages 55–56, paras. E–E; and AUWALU v STATE (2020) LPELR-50323(CA), per Abiru, JCA at pages 40–41, para. B.

In any event, the settled position is that where an accused person has been fixated to the locus criminis by the evidence of an eye witness, any defence of alibi would crumble. In YALIA v STATE (2019) LPELR-47398(SC), the Supreme Court, per Kekere-Ekun, JSC, stated at pages 37–38, para. D, that:
“It is quite common for an accused person to raise the defence of alibi, that is, to contend that he was elsewherewhen the offence was committed and that he has been erroneously linked to the offence. The defence of alibi would however crumble where the accused person is fixed at the scene by the victim or other eye witnesses. In such circumstances, the investigation of a claim of alibi would serve no useful purpose.”
See also: NOMAYO v STATE (2018) LPELR-44729(SC), per Rhodes-Vivour, JSC at pages 22–23, para. E; STATE v EKANEM (2016) LPELR-41304(SC) at pages 10–11, paras. D–A; VICTOR v THE STATE (2013) 12 NWLR (Pt. 1369) 465; and EBENEHI v THE STATE (2009) 6 NWLR (Pt. 1138) 431 at 448.

In the instant appeal, the learned trial Judge had after a thorough review of the evidence led and the Appellant’s defence of alibi, held at page 78 of the Record of Appeal as follows:
“From all the above, it is clear that his evidence on oath is an afterthought as he also failed in his duty to call his mother to come and give evidence to support him to show that it was because he truly went to see her in the neighbourhood of the Chelsea Bus Stop near Canaan Land before he was arrested to satisfy the proposition of law laid down in ATTAH v THE STATEper Adekeye, JSC, that even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi.
I must thus agree with the submission of learned Counsel for the Prosecution that there is positive identification of the Defendant as the Defendant was apprehended by the victim, PW1 herself thus showing that the identity of her assailant is not in doubt.”

As clearly shown in the printed record, and as rightly found above by the learned trial Judge, PW1, the victim of the robbery had not only given a vivid account of how the Appellant with another now at large had robbed her in her shop, but also how she was able to hold onto the Appellant who was holding a gun and eventually get passers-by and neighbours to assist in apprehending him and transferring him to the police station. The Appellant had therefore, not only raised a defence of alibi late at trial, he was clearly fixated at the scene of the crime by the evidence of PW1.

​It is also instructive to observe that the Appellant’s two confessional statements were tendered and admitted as Exhibits A andC by the trial Court after a trial within trial that determined the voluntariness of the said statements. At page 78 of the Record, the learned trial Judge also refused to rely on the Appellant’s defence of alibi, regarding same as a retraction of the said confessional statements. In his words, the trial Judge held that:
“I must perforce not also rely even on his evidence on oath as it is a clear retraction of his confessional statements Exhibits A and C as the law is settled that the retraction of a confessional statement by an accused person in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied as to the confession and can rely solely on the confessional statement to ground a conviction, UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644; DIBIE VS. THE STATE (2007) 9 NWLR (PT. 1038) 30.”

From the totality of what is on record, it is evident that the Appellant had not only raised a defence of alibi late at trial, he was clearly fixated at the scene of the crime by the evidence of PW1 and had also made confessional statements in Exhibits A and C to the police, all of which the learned trial Judgeconsidered before rejecting and discountenancing the Appellant’s defence of alibi. The Appellant’s so-called defence of alibi is therefore, legally of no moment and I hold that same was rightly discountenanced by the trial Court as an afterthought.

The second contention of the Appellant as contained in paragraph 4.20 of the Appellant’s Brief of Argument, is that the trial Court failed to avert its mind to the defence of the Appellant. It is instructive however, to point out that the essential defence put forward by the Appellant is that of alibi. And at pages 72-78 of the Record of Appeal, the learned trial Judge had thoroughly reviewed the evidence of the Appellant in support of his defence, the evidence of the Prosecution and the submissions of the Counsel for the Appellant and the Prosecution before rejecting the Appellant’s defence of alibi.

I have already held above that the learned trial Judge rightly rejected the defence of alibi, same having been only raised at trial instead of at the earliest opportunity.
​Suffice it for me to add that, as acknowledged by the learned Counsel for the Appellant in paragraph 4.14 ofthe Appellant’s Brief, even if the Appellant’s defence of alibi were to be considered, the Appellant had the onus of leading evidence in support thereof. See the case of NNAMDI OSUAGWU v THE STATE (supra), which was also cited by the Appellant’s Counsel. Not surprisingly, the learned trial Judge had held as shown above that the Appellant had failed in his duty to call his mother to come and give evidence to support him to show that it was because he truly went to see her in the neighbourhood of the Chelsea Bus Stop near Canaan Land before he was arrested to satisfy the proposition of law laid down in ATTAH v THE STATE per Adekeye, JSC, that even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi.

​I observe that the learned Counsel for the Appellant had tried to argue at paragraph 4.17 of the Appellant’s Brief of Argument that the Appellant was unable to raise the defence of alibi at the earliest opportunity because his evidence at the police station was obtained under duress, and that the Appellant had at trial objected to theadmissibility of his statements which was wrongly determined in favour of the Respondent by the trial Court. However, while giving his evidence as DW1 at page 65 of the Record of Appeal, the Appellant had, apart from stating that his statement was taken involuntarily, had also stated that:
“…The Police brought me to write a statement, when my statement was being obtained. I told policeman taking my statement that I could not write as I mix flour in a bakery. They were asking me questions and I was answering and my statement was being recorded, after the statement was recorded, I thumb printed as the maker.”

From the above testimony of the Appellant, it is also evidently clear that he had the opportunity to raise the defence of alibi which he failed to do, as no such defence has been made in any of the two statements of the Appellant made to the Police which were tendered as Exhibits A and C. Thus, contrary to the assertion of the Appellant, the printed record of appeal shows that the learned trial Judge had thoroughly considered the defence of alibi put forward by the Appellant before rejecting same as an afterthought.

​It is alsopertinent to point out that the specific finding of the trial Court rejecting the Appellant’s defence of alibi as an afterthought, which I have earlier quoted above, has not been made a ground of this appeal by the Appellant. In fact, in his Amended Notice of Appeal filed on 5th July, 2021 and deemed properly filed on 21st September, 2021, the Appellant had only one ground of appeal which was that:
The learned trial Judge erred in law when he upheld that the Prosecution has proved the case against the Appellant beyond reasonable doubt.

In the particulars to that sole ground, the Appellant had only stated as follows:
(i) The evidence given at trial by the prosecution is replete with material contradictions and the learned trial Judge erred in law in convicting the accused person upon contradictory evidence of the prosecution witnesses, particularly PW1; viz:-
(a) PW1 stated in her statement to the police that the Appellant was apprehended by her inside her shop, but at trial, she stated that the Appellant was apprehended outside of her shop where she grabbed him by his collar at first and then by his trouser when he was trying to fleeon top a motorcycle.
(b) PW1 failed to identify that it was the Appellant that she apprehended at her shop and no other person.
(ii) The evidence adduced by the Prosecution at trial does not satisfy the requirement of the standard of proof beyond reasonable doubt in criminal matters.
(iii) The judgment of the lower Court is unreasonable having regard to the testimonies of witnesses and exhibits tendered by the Prosecution.

The Appellant has therefore not made the finding of the trial Court rejecting his defence of alibi a ground of this appeal. As shown above, his sole ground of appeal is virtually an omnibus ground of appeal which complains against the weight of the totality of the evidence led, particularly highlighting the contradictions in the evidence of the Prosecution, especially the evidence of PW1.

It is settled law that an Appellant who complains against a specific finding of the trial Court must make such finding a ground of his appeal from which an issue can then be distilled for determination. See: AJIBONA v KOLAWOLE & ANOR (1996) LPELR-299(SC), per Ogwuegbu, JSC at page 11, para. B; OSOLU v OSOLU & ORS (2003)LPELR-2810(SC), per Musdapher, JSC (as he then was) at page 35, para. E; MBANG v STATE (2013) 7 NWLR (Pt. 1352) 48 at 67; and OSAMWONYI v OGUNSUYI (2021) LPELR-56032(CA), per Ekanem, JCA at page 11, para. A.
It is trite that an omnibus ground of appeal only complains against the totality of the evidence led at trial. It cannot be relied upon to challenge specific findings of fact or errors of law: AKINLAGUN & ORS v OSHOBOJA & ANOR (2006) LPELR-348(SC), per Kalgo, JSC at page 19, para. A; and AJIBONA v KOLAWOLE & ANOR (1996) LPELR-299(SC), per Ogwuegbu, JSC at page 11, para. B. The failure to challenge on appeal a specific finding of the trial Court makes same subsisting and binding on the parties. See:ADEJOBI& ANOR v STATE (2011) LPELR-97(SC), per Galadima, JSC at page 21, para. E; DASUKI v FRN (2018) LPELR-43897(SC), per Eko, JSC at page 12, para. A; and OSAMWONYI v OGUNSUYI (supra). By failing to appeal against the specific finding of the trial Court rejecting the Appellant’s defence of alibi, the Appellant had conceded that the said finding of the trial Court is correct and therefore is binding on him. I so hold.

​As forthe second contention of the Appellant that the trial Court had failed to consider the contradictions in the evidence of the Prosecution witnesses, especially PW1, the essential argument made by the Appellant in paragraphs 4.23 – 4.25 of the Appellant’s Brief of Argument, is that PW1 had stated in her statement to the police that the Appellant was apprehended by her in her shop, while she stated at trial that the Appellant was apprehended outside the shop. The Appellant had argued that this goes to the root of identification of the person who committed the armed robbery and that it is apparent that PW1 and PW2, the Prosecution witnesses did not know who committed the armed robbery. But the Respondent had argued that the evidence of PW1, the victim of the armed robbery was categorical in identifying the Appellant as one of those who robbed her in her shop and the person whom she apprehended, and that Exhibits A and C, the confessional statements of the Appellant had also fixed the Appellant to the scene of the crime.

​The law on identification parade is legion, in that an identification parade is only necessary where an accused is not arrestedat the scene of the crime or shortly thereafter, and was not well known to the victim or any of the victims. An identification parade is also essential whenever there is a dispute or uncertainty as to the identity of the robber or there is a doubt about the possibility of a witness recognizing an accused person during the commission of the crime. See: OGOALA v STATE (1991) LPELR-2307 (SC), per Nnaemeka-Agu, JSC at page 13, para. A; AJAYI v STATE (2014) LPELR-23027(SC), per Muhammad, JSC at 20–21, para. C; and SADIKU v STATE (2013) LPELR-20588 (SC), per Aka’ahs, JSC at page 15, paras. A.
In OGU v C.O.P (2017) LPELR-43832(SC), the Supreme Court, per Kekere-Ekun, JSC also reiterated this trite position at pages 29–30, paras. A-E:
“In a charge for armed robbery, the identity of the accused person as the robber or one of those who participated in the offence is always in issue. It is one of the ingredients of the offence that must be proved beyond reasonable doubt. An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime orspontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly, where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade.”

In the instant case, I had shown above that the learned trial Judge had after a detailed review of the evidence before him, discountenanced the Appellant’s defence of alibi and held at page 78 of the Record of Appeal that “…there is positive identification of the Defendant as the Defendant was apprehended by the victim, PW1 herself thus showing that the identity of her assailant is not in doubt.” The Appellant wastherefore not only fixed at the crime scene, he was apprehended by the victim and other helpers on the spot. In the circumstance, the issue of identification raised by the Appellant is really a moot point and same was rightly discountenanced by the trial Court.

​As for the Appellant’s argument in relation to contradiction in the evidence of PW1, the record shows that the Appellant had raised the same issue at the trial Court and the learned trial Judge has adequately addressed the issue in his judgment when he held at page 75 of the Record of Appeal as follows:
“Does this evidence lack probative value as submitted by the defence Counsel because PW1’s evidence was contradictory that she arrested the Defendant in her shop and outside the shop as well?
An understanding of the excerpted portion of PW1’s evidence which is hereunder reproduced will show that there was no contradiction in her evidence as what she stated was that she jumped on the gun held by the Defendant in her shop and she held onto it while the Defendant was trying to take the gun away which caused him to drag her with the gun outside which caused the gun to fall onthe ground and for her to transfer her grip to his top and subsequently to his trousers till passers-by and neighbours came to assist in arresting the Defendant.”

Therefore, contrary to the assertion of the Appellant, the learned trial Judge had duly considered the evidence of PW1 and, in my view, he had rightly evaluated and found no contradiction in the evidence which could affect the Prosecution’s case.

In any event, the settled law is that it is only contradictions which are material that create doubt in the mind of the Court as to affect the Prosecution’s case. See: MUSA v STATE (2019) LPELR-46350(SC), per Muhammad, JSC at page 9, para. A. In other words, it is not every discrepancy or inaccuracy in evidence that could amount to a material contradiction. See: GALADIMA v STATE (2017) LPELR-43469(SC), per Galinje, JSC at page 49, para. C.

It is trite that the commission of a crime is established through any or all of three methods which are: (i) by direct evidence of eye witness(es); (iii) by confessional statement; (iii) by circumstantial evidence. See: ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E–E; andOGOGOVIE v THE STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B.

As rightly observed by the trial Court at page 72 of the Record, the Prosecution had, in establishing its case against the Appellant, relied on the direct or eye witness evidence of PW1, the victim of the armed robbery, as well as on the confessional statements of the Appellant tendered and admitted, after a trial within trial, as Exhibits A and C. As I stated earlier, the learned trial Judge had thoroughly reviewed and evaluated the evidence of PW1, the victim of the robbery who had stated how the Appellant and one other person at large came to rob her in her shop and it was the Appellant who held the gun and that she jumped upon him and struggled for the gun until the Appellant dragged her outside the shop and when the gun fell to the ground, she held on to the Appellant and with the help of passers-by and neighbours they apprehended the Appellant while the other person escaped on the motorcycle they brought.

​As for the confessional statements of the Appellant admitted as Exhibits A and C, the settled law is that in attaching probative value to aconfessional statement admitted in criminal trials, the trial Court is enjoined to put the statement to a veracity test. This test, which has been laid down in R v SKYES (1913) 1 Cr. App. R. 233, has become trite having been applied in several cases. See: KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40–41, para. G; ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para. A; AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A; and OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 24–25, para. E. These tests are:
(i) Is there anything outside the confession to show that it is true?
(ii) Is it corroborated by other evidence?
(iii) Are the facts stated in the confession true as far as can be tested?
(iv) Had the accused person an opportunity of committing the offence?
(v) Is the accused person’s confession possible?
(vi) Is the confession consistent with the other facts ascertained and proved?

In the instant case, the Record of Appeal especially at pages 78–81 thereof, shows that the learned trial Judge had not onlyreviewed the two confessional statements of the Appellant (Exhibits A and C), he graphically reproduced their contents and thereafter applied the above settled tests for ascribing probative value to confessions by correlating same with the direct evidence of PW1, the victim of the robbery, as well as the gun and 2 cartridges admitted as Exhibits B, B1 and B2.

In evaluating the confessional statements of the Appellant, the learned trial Judge specifically held at page 81 of the Record as follows:
“Now are these confessional statements consistent with the other evidence admitted in this case, i.e. are there other facts outside this confessions to lend credence to the facts stated therein?
An appreciation of the direct or eye witness evidence of the complainant and the gun and 2 cartridges found is corroborative of the statements of the Defendant as regards the under mentioned:
– That 2 robbers entered into PW1’s shop, a shop where she sells beer, clothes and shoes and robbed her.
– That a locally made double barrel gun was used to rob PW1. An examination of Exhibit B, the gun shows it as truly double barrel which tallies with Exhibit A, the confessional statement of the Defendant, PW1’s evidence that the gun used to rob them was recovered at the scene.
– That there were 3 of them with the other robber whom he called Nuru escaping on a commercial motorcycle (ridden by their okada man) with the stuff stolen from PW1’s shop likewise tallies with PW1’s evidence that 3 of them came with 2 others escaping on the motorcycle.
– His statement, Exhibit A is also further corroborated by PW1’s evidence that he bit her shoulder in order to escape which is also corroborated by the scar shown by PW1 to the Court during her evidence at the trial.
– His statement that he was arrested by 5 boys from the neighbourhood finds corroboration in PW1’s evidence that he was arrested by passers-by and people in the neighbourhood at the scene of the crime.
The facts as reviewed above thus show that the confessions are possible as the statements show a narration of the robbery though slightly disparate, which is not however fatal in this case as such minor discrepancies are not sufficient to amount to material contradictions as there is corroboration of the relevant pieces of his statements in the evidence of PW1. I thus find, contrary to the submission of the Defence Counsel that these confessional statements rather than exculpate him show that he was involved heavily in the robbery.
I thus also do not find the evidence on oath of the retraction of his confessional statements credible as I hold his evidence on oath an afterthought as the evidence which is contained in his confessional statements is far more credible and of probative value as it was made not so long after his arrest, indeed within 2 weeks of the robbery incident rather that his evidence on oath made on 8th May, 2018, 10 years after the incident.
I also hold that the 3rd ingredient that he was involved in the robbery has also been proved independently by the eye witness account of PW1 solely and also by the Defendant’s confessional statements having passed the laid down tests solely suffice to ground his conviction and which truth has been ascertained from other pieces of evidence as reviewed above as it is clear from the said statements that he and others now at large robbed PW1.
Thus, I hold that the Prosecution has proved the commission of the offence of armed robbery against the Defendant.”

In my considered view, the above excerpt of the holding of the learned trial Judge had thoroughly evaluated and ascribed the right probative value to the Appellant’s confessional statements. Also, as stated earlier, the Appellant has in his sole ground of appeal, only challenged the totality of the evidence led and has not challenged any specific findings of the trial Court.

In any event, evaluation of evidence and ascription of probative value thereto, is the primary function of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. Thus, not having been challenged and shown to be improper or perverse by the Appellant, this Court has no vires to interfere with it: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E.

Upon a careful consideration of the evidence on record, I hold the considered view that findings and conclusions of the trial Court in relation to the Appellant’s culpability for the offence of armed robbery is consistent with the totality of the evidence led before it. The trial Court correctly held that the Prosecution has proved beyond reasonable doubt that the Appellant committed the offence of armed robbery.

On the offence of conspiracy, it is essentially an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. The actual agreement alone constitutes the offence, as it is not necessary to prove that the act had in fact been committed. The actual commission of the offence however, may show the common intention formed before the offence is committed, thereby establishing the offence of conspiracy. Thus, as conspiracy can hardly be proved by direct evidence, it is usually inferred from proof of the substantive offence. See: JOHN v STATE (2016) LPELR-40103(SC) per Ngwuta, JSC at page 10, para. A; and OKIEMUTE v STATE (2016) LPELR-40639(SC), per Peter-Odili, JSC at pages 37–38, para. E.

In the instant appeal, the record shows that the trial Court had followed the trite position of first considering whether the Prosecution had established that the Appellant committed the substantive offence of armed robbery, and having found that same has been established, it then inferred the offence of conspiracy therefrom against the Appellant. See pages 82–83 of the Record of Appeal. Specifically at page 83, the learned trial Judge had after stating the ingredients of the offence of conspiracy, held as follows:
“An appreciation of the evidence reviewed above shows that the Court, from the totality of the evidence admitted at the trial including the sole and credible evidence of PW1 and the confessional statements of the Defendant, must enter a finding of guilt against him as there is evidence in satisfaction of the above-mentioned ingredients which shows that the robbers acted sequel to their common intent to rob. There is indeed also evidence that the 2nd robber that the Defendant described as Nuru escaped from the scene of the robbery together with their Okada man.
In view of all the findings made by this Court, I hereby hold that the Prosecution had proved beyond reasonable doubt the ingredients of the offence of conspiracy to commit armed robbery against the Defendant as contained in Count I, and also the substantive offence of armed robbery as contained in Count II and I hereby find him guilty on the 2 count charge preferred against him.”

On the whole therefore, it is my considered view that the trial Court rightly held that the Prosecution had proved beyond reasonable doubt the two count charge of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant. The sole issue for determination is therefore resolved against the Appellant. In consequence, I find this appeal devoid of merit. Accordingly, I hasten to dismiss same. The judgment of the trial Court delivered on 21st February, 2018 in Suit No. HCT/3R/2013, embodying the conviction and sentence of the Appellant is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment of my learned brother, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and that the same should be dismissed. I wish to add few words for the purpose of emphasis and in affirmative support of the lead judgment.

The Appellant raised a sole issue before the Court challenging the findings of the trial Court that the prosecution proved the ingredient of the offence of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt.

It is a constitutional requirement that the prosecution must prove the guilt of the accused person beyond reasonable doubt. See Section 135 of Evidence Act 2011 as amended and the case of WOOLMINGTON V. PPP (1935) AC 462, UCHE V. STATE (2015) 4-5 SC (PT.II) 140 and SANI V. THE STATE (2015) 6/7 SC (PT.II) 1 AT 17.

And the prosecution must prove the guilt of an accused person in any of the following ways:
(i) Through a voluntary confessional statement of the accused person; and/or
(ii) Through direct credible and reliable eye- witness or victims of the offence account depending on the circumstance of the offence or offences; and/or
(iii) Through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.
See the case ADIO V THE STATE (1986)2 NWLR (PT.24), EMEKA VS THE STATE (2001)6 SC 227,EGBOGHONOME V THE STATE (1993)7 NWLR (PT.306)383 and Ojo V. STATE (2018) LPELR-44699 (SC).

In this instant appeal, the trial Court relied on the evidence of PW1 (the victim) and the Appellant’s confessional statement to convict the Appellant. PW1 gave a vivid account of how the Appellant and one other came to rob her but she was able to hold onto the Appellant who was holding a gun and eventually get passers-by and neigbours to assist in apprehending him and transferring him to the police station where he wrote his statement.

The trial Court relied on the direct evidence given by PW1, direct evidence is said to be one of the best forms of evidence and Section 126 of the Evidence Act, 2011, requires that oral evidence in all cases must be direct. Evidence is direct when, if the fact to be proved was seen by the witness who saw it. If it was heard, then it must be the evidence of the witness who heard it.

See CHUDI VERDICAL CO. LTD V. IFESINACHI INDUSTRIES (NIG) LTD & ANOR (2018) LPELR-44701(SC),YAHAYA V. OPARINDE (1997) 10 NWLR (PT. 523) 126 and OJO V. GHARORO (1999) 8 NWLR (PT. 615) 387.

The Appellant contended that he was not at the scene and had given evidence his whereabouts, however, the defence of alibi shall not avail the Appellant because he was clearly fixated at the scene of the crime by the evidence of PW1 and Exhibits A and C which are his confessional statements. Consequent upon the above and the more elaborate reasons advanced in the lead judgment, I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed.

FOLASADE AYODEJI OJO, J.C.A.: I read before now, the draft judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA and I readily agree with all the views expressed and conclusion reached therein that the judgment of the trial Court be affirmed. I however will like to emphasise that once there is positive proof that the Accused committed the offence for which he is charged, the Prosecution will be held to have discharged the burden on it to prove his guilt beyond reasonable doubt.

​In the instant appeal, there is unchallenged evidence that while PW1 was in her shop along Iju-Ota/Idiroko Road, Ota on 22nd of May, 2008, she was robbed by men armed with a gun. At page 57 of the printed Record, she testified as follows:
“On(sic) my anger I jumped at the Accused person and held out the gun he was holding as he was the one standing by the door and prevent us from shouting. The other person now ran away with the Accused person dragging me with the gun he held and he dragged me outside with the gun with the other person telling him to abandon the gun with me and he left the gun and jumped into the motorcycle. I ran after him and pulled him by his dress collar from the motorcycle and held onto him. As he attempted to pull over the top he wore in my hands, I dropped the top and held on to his trousers. He struggled with me that I should leave him but I was unyielding and held on tight to him, he thus bit me deeply on my shoulder that my shin came off onto his mouth. I can show the Court the place where he bit me.”

PW1’s evidence was not shaken under cross-examination. A cross-examination of her testimony shows that in her struggle with theAppellant, she spent a considerable length of time with him. She could not have made a mistake when she identified the Appellant as the armed robber who robbed her. The well settled position of law is that when an Accused Person is accosted at the scene of crime and identified as the perpetrator, he is deemed to have participated in the commission of the crime. See LAWAL VS. STATE (2019) 4 NWLR (PT. 1663)457: AFOLABI VS. STATE (2022) 2 NWLR (PT. 1814)201; OLAYIWOLA VS. STATE (2021) 12 NWLR (PT. 1306)579.

There is positive, credible and cogent evidence that the Appellant was apprehended by the victim at the scene of crime. He was properly identified as one of the armed robbers who robbed PW1. I align myself with the conclusion reached in the lead judgment that the Prosecution has proved beyond reasonable doubt that the Appellant committed the offence of armed robbery.

​Consequently, I also find this appeal devoid of merit and I too dismiss it.

Appearances:

Abubakar Yesufu, Esq., with him, I. C. Odo (Mrs.) For Appellant(s)

O. A. Lawal, ADPP, Ogun State Ministry of Justice For Respondent(s)