GANIYU IDRIS v. THE STATE (2014)

GANIYU IDRIS v. THE STATE

(2014)LCN/7383(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/IL/C.48/2014

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF DISPROVING THE DEFENCE OF ALIBI

It is settled law that once an accused sets up a defence of alibi, the burden of disproving it rests on the prosecution. The onus still lies on the prosecution to prove beyond reasonable doubt that the accused person was not only at the scene of the crime but that he committed that offence. See Amodu vs. The State (2010) 2 NWLR part 1177 page 47 at page 80 paragraph 9. That the respondent failed to disapprove the defence of alibi raised by the appellant. The respondent did not contradict the evidence of the accused on the issue of alibi. In Amodu vs. The State (supra) at page 81 paragraph C, the court held thus:-
“The defence of alibi is complete once the accused person discloses to the police his where about without more at the time of the commission of crime. There is no burden of proof on the accused who puts forward an alibi to refer to any burden as resting on an accused person in a case where he raised the plea of alibi. See Yanor vs. The State (1965) NWLR 337, State vs. Azeez (2008) 14 NLWR Pt 1108 at 439”. per. MUSA HASSAN ALKALI, J.C.A.

EVIDENCE: IDENTIFICATION EVIDENCE; WHETHER IDENTIFICATION PARADE IS NOT SINE QUA NON TO CONVICTION AND WHEN IT IS ESSENTIAL

In Archibong vs. State (2004) 1 NWLR Pt. 855, 488 at 509 paragraph E-H, the court held thus:-
“It was held that identification parade is not a sine qua non to conviction and that is only essential in the following instances:-
(a) where victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b) where the victim or witness was confronted by the offender for a very short time and
(c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
Where an identification parade is necessary then if the identification evidence is poor, the judge should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification”. per. MUSA HASSAN ALKALI, J.C.A.

EVIDENCE: IDENTIFICATION EVIDENCE; WHETHER PROMPT IDENTIFICATION BY THE VICTIM IS THE BEST FORM OF IDENTIFICATION AND THE CIRCUMSTANCES UNDER WHICH AN IDENTIFICATION PARADE IS UNNECESSARY IN AN INVESTIGATORY PROCESS

In Adamu vs. The State (1991) 4 NWLR (Pt. 187) 530 at 537-538 Per Belgore JSC (as he then was) elucidated the position thus:-
“The entire circumstances of a case determine the type of identification necessary. In some cases, when there is more of suspicion rather than some concrete evidence against an accused person, an identification parade may be necessary whereby the accused person is lined up among other persons or even suspects and the victim or witnesses is asked to identify the culprit. But such method is not necessary if the victim of the crime or a witness there of promptly identifies the criminal without prodding as has happened in this case. See Okosi vs. The State (1989) 1 NWLR (Pt. 100) 642-656, Mbenu vs. The State (1988) 3 NWLR (Pt. 84) 615, 628, State vs. Albangbee (1988) (Pt. 84) 548, Madagua vs. The State (1988) 5 NWLR (Pt. 92) 60. The time lapse between 13th – 14th October when the attack and kidnap took place and 16th October, 1978 when the victim of the crime identified the appellants was not long enough to dampen his memory as to the identity of the accused persons. I see no substance in this complaint as to identification of 3rd, 4th and 5th appellant”.

In Adamu vs. The State (supra) The Supreme Court not only acknowledge prompt identification by the victim as the best form of identification it held that an identification of an accused person done by the victim three (3) days after the commission of the crime was proper in law.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE: WHEN SHOULD INFERENCE BE DRAWN FROM THE CIRCUMSTANCE OF THE COMMISSION OF AN OFFENCE

In Akpa vs. State (2008) 14 NWLR Pt. 1106, 72 at 101 Paragraph E-F, the Supreme Court held thus:-
“Again for the purpose of emphasis, it is now firmly established that where the circumstance of the commission of an offence are positive, direct, unequivocal and irresistibly lead to the inference that it is the accused person that committed the crime, such inference ought to be or should be drawn”. per. MUSA HASSAN ALKALI, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

GANIYU IDRIS Appellant(s)

AND

THE STATE Respondent(s)

MUSA HASSAN ALKALI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kwara State High Court of Justice Ilorin delivered by Hon. Justice M. A. Folayan dated 31/07/2013 whereby the appellant and one Olayinka Mayowa Adebayo were convicted and sentenced each to 21 years for conspiracy and robbery under Section 97 of the Penal Code and Section 1(1) of the Robbery and Firearms (special provision) Act, Cap. R.11 Laws of the Federation of Nigeria 2004.

The appellant was the 2nd accused person and Olayinka Mayowa Adebayo were arraigned before the High Court of Justice Ilorin Kwara State on 3 count charges for criminal conspiracy, contrary to Section 97 of the Penal Code, armed robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provision) Act, Cap. R.11 Laws of the Federation of Nigeria 2004 and illegal possession of firearms contrary to Section 3 of the Robbery and Firearms (Special Provision) Act, Cap. R.11 Laws of the Federation of Nigeria 2004.

Ganiyu Mayowa Adebayo and the appellant were in court from the beginning to the end of the trial. Each count of the charge was read, translated into English Yoruba and vice versa. Ganiyu Mayowa Adebayo pleaded not guilty to the charge. The appellant also pleaded not guilty to the trial.
The 3 count charges are read thus:
COUNT 1
That you Olayinka Mayowa Adebayo (M), Ganiyu Idiris, and Ayodeji Olalekan now at large on or about the 27th day of January, 2010 at Flower Garden Area GRA, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to carry out an illegal act to wit, attacked and robbed Pastor Olowe Adekunle of his properties at gun point and you thereby committed an offence punishable under Section 97 of the Penal Code Law Cap. P. 4 Laws of Kwara State, 2006.
COUNT 2
That you Olayinka Mayowa Adebayo (M), Ganiyu Idiris (M) and Ayodeji Olalekan now at large on or about the 27th day of January, 2010 at Flower Garden Area GRA, Ilorin Kwara State within the jurisdiction of this Honourable Court while armed with dangerous weapons attacked and robbed Pastor Olowe Adekunle of his properties including but not limited to cash sum of N48,000 D and G wrist watch, computer flash drive, 3 GSM Handsets.
His Car Key, jewellery, one ring and some old currency notes to gun point and you thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (special provisions) Act, Cap. R.1 1 Laws of the Federation of Nigeria, 2004.
COUNT 3
That you Olayinka Mayowa Adebayo (M) on, or about the 18th day of November, 2009 at No. 4, Chief Matins Ndidi Street, Tanke Area, Ilorin, Kwara State within the jurisdiction of this Honourable Court was found to be in illegal possession of locally made pistols and life cartridges and you thereby committed an offence punishable under section 3(1) of the Robbery and firearms (special provisions) Act, Cap.R.11 Laws of the Federation of Nigeria 2004.

Seven witnesses testified for the prosecution during the trial, trial within trial proceeding was conducted by the court where two witnesses for prosecution and two witnesses for defence testified.
The court ruled that the confessional statement sought to be tendered was inadmissible and thereby rejected dated 18/4/2013.
One Iron, one long stick, one iron rod, one vehicle shaft and also the extra-judicial statement of the accused the appellant to the police were tendered as exhibits.
At the close of the defence, written addresses were filed by counsel.

In convicting the appellant the court said thus:-
“I hereby find these two accused persons not guilty of armed robbery but are guilty of the offences of criminal conspiracy under Section 97 of the Penal Code and robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11 Laws of the Federation of Nigeria 2004 and they are hereby convicted accordingly.”
On the charge of being in illegal possession of arms against the 1st accused I hold that the prosecution has failed to prove this charge beyond reasonable doubt, I therefore acquit 1st accused on this charge.
Sentence
Having convicted the 2 accused for conspiracy and robbery, I hereby sentence each of the two accused persons on the 1st counter charge to 21 years imprisonment, and on the 2nd counter charge each of the two accused persons is sentenced to 21 years imprisonment also, However the sentences are to run concurrently.

The “appellant” herein being dissatisfied with the decision of the High Court of Justice Ilorin Kwara State delivered by His Lordship M. A. Folayan J. dated 31/07 /2013 doth hereby appeal to the Court of Appeal upon eight grounds set out in paragraph 3 of the notice of appeal filed dated 21/3/2014. Appellant’s brief of argument was settled by Sheni Ibiwoye Esq. and Taiye Oniyide Esq. dated and filed 1st day of April, 2014. They adopted the said brief as the appellant brief of argument in this appeal and urge the court to allow the appeal.
Parties to this appeal exchanged their respective briefs in accordance with the rules of the Court.

The respondent brief of argument was settled by Kamaldeen Ajibade Esq. Hon. Attorney General and Commissioner for Justice, Ministry of Justice Ilorin. He adopted the said brief as the respondents briefs of argument in this appeal and urge the court to dismiss the appeal, affirm the judgment of the court below.
On behalf of the appellant, the learned counsel raised five issues for determination out of the eight grounds of appeal. The issues read thus:-
ISSUE 1
Whether the learned trial judge was right to have relied on exhibit 12 (letter of transfer of appellant to the Special Anti-Robbery Squad SARS Akure) and other evidence relating to the appellant’s alleged robbery case in Akure, Ondo State to convict and thereafter sentence the appellant to 21 years imprisonment.
ISSUE 2
Whether the learned trial judge was right when it disregarded the uninvestigated defence of alibi raised by the appellant during his investigation by the police.
ISSUE 3
Whether the learned trial judge was right when after rejecting the appellant’s extra-judicial statement in evidence, it still went ahead to hold that the respondent established the offences of robbery and criminal conspiracy against the appellant.
ISSUE 4
Whether the learned trial judge was right when he convicted and subsequently sentenced the appellant to 21 years imprisonment based on the purported identification of the appellant by PW2.
ISSUE 5
Whether the learned trial judge was right to have relied on the case of Dr. Oduneye vs. State (2001) 5 NSCQR page 1 at 11 to commit the offence of robbery.

The marriage of issues were as follows:-
(a) Issue 1 relates to ground 1
(b) Issue 2 relates to grounds 2 and 3
(c) Issue 3 relates to grounds 4, 5 and 8
(d) Issue 4 relates to ground 6
(e) Issue 5 relates to ground 7
The respondent adopted the five issues raised by the appellant.

Submissions and legal argument in support made by both counsel on issues are as follows:-
On behalf of the appellant learned counsel Sheni Ibiwoye with Taiye Oniyide submitted that the trial judge was wrong to have admitted and relied heavily on Exhibit 12 (letter of transfer of appellant to the Special Anti-Robbery Squad (SARS) Akure) as well as the oral evidence of PW7 among others all relating to the appellant’s alleged robbery case in Akure, Ondo State to eventually convict and sentence the appellant to 21 years imprisonment when the offence was allegedly committed in Ilorin Kwara State and without semblance to the said Akure incidence.

They submitted that the offence of armed robbery alleged against the appellant was committed in Ilorin Kwara State. Each of the two counts in the charge sheet at page 2 of the record reads:-
“On or about the 27th day of January, 2010 at Flower Garden Area GRA Ilorin Kwara State within the jurisdiction of this Honourable Court”.
At page 71 of the record, PW7 one sergeant Monday Ogidiagba attached to the Special Anti-Robbery Squad as investigator stated thus:-
“I also remember that on 10/10/2009 following an information received at SARS office in Ilorin that the 1st accused one Yekini Kabiru now deceased and, one other belong to an (SIC) 3 – man robbery gang terrorizing Ilorin and Akure in Ondo State …….. On arresting them, the 1st accused confessed to the robbery operations undertook by his gang at Akure. Based on this they were transferred to SARS Akure for further investigation via letter No. AR/3100/KWS/SARS/Vol… 1/95 dated 5/10/2009 inspector Joseph Dahunsi by SARS Akure on the 4/01/2010 we received signal message from SARS Akure that the 1st and 2nd accused the 3rd accused at large and others escaped from their custody and we should assist in arresting them if they are seen, not until 29/01/2010 when the 1st and 2nd accused were transferred from “A” Division with different names”.

They further submitted that there is no justification in the circumstance for the conviction and sentencing of the appellant to 21 years imprisonment by the learned trial judge. The judgment of the lower court does not accord with the interest of justice which has now occasioned a miscarriage of justice on the appellant we urge your Lordships to so hold in resolving this issue in favour of the appellant.

In response to issue No. 1 the learned counsel for the respondent Attorney General and Commissioner for Justice submitted that the formulation of this issues and the supporting argument on same represent a flagrance misconception by the appellant on the inference drawn by the learned trial judge on Exhibit 12. A careful perusal of what transpired on page 72 of the record that led to the admission of Exhibit 12 is clear and unambiguous before the trial court, PW7 was the investigating police officer of this case.

His evidence before the trial court was essentially on his findings as regard why the two accused i.e. the appellant and his Cohort keeps changing their names at will bearing in mind that one of them escaped from prison custody when arrested in respect of this offence just like they have done in the Akure case in which he also happens to be the investigating police officer. He further stated that unlike a mere review of evidence, its actual evaluation involves a reasoned belief of the evidence of one contending parties and disbelieve of the other or reasoned preference of one version to the other. There must be an indication on record as to how the court arrived at its conclusion of preferring one pieces of evidence to the other. The evaluation and finding of facts in respect of all issues arising in the case and material to the determination of the case is a fundamental duty of a trial court. See Rauf Adesoji Aregbesola vs. Olagunsoye Oyinlola (2011) 2 NWLR (Pt. 1253) at 492, Oduwole vs. Aina (2001) 9 NWLR (Pt. 1253) 458 at 482 H.

It is instructive to note that the inference the learned trial judge drew on page 104 of the judgment was to evaluate the evidence on both parties particularly as regards the evidence of the appellant and his cohort who asserted under oath that they never knew each other before they were arrested in connection with this offence.

It is further submitted that the evidence of PW7 in that regard does not fall within the classes of evidence envisaged under Section 82 (1) of the Evidence Act, but within the exception created by subsection 82 (2) of the Evidence Act. It was the appellant who made his Akure case a fact in issue when he alleged that he has never known the 1st accused person from Adams and that it was the police that falsely and malicious joined them as case mate in the course of this robbery.

I hereby resolved that the lower court’s finding and inferences drawn from the evaluation of evidence on both sides, particularly the appellant and his colleague who testified under oath that they did not know each other before their arrest over the incident.
The reference made to the Akure case by the trial court was to clear the air to show that the accused persons know each other.
This issue has no merit and accordingly resolved against the appellant.

ISSUE 2
Whether the trial judge was right when he disregarded the uninvestigated defence of alibi raised by the appellant during his investigation by the police.

Learned counsel Sheni Ibiwoye Esq. with Taiye Oniyide Esq. on behalf of the appellant made a reference on the record at pages 104 – 105, the trial judge held thus:-
“Each of them have formulated stories, that give the resemblance of a defence of alibi … particularly the 2nd accused who said he came from Ijebu the previous day and kept a night at his brother’s place.
“I don’t believe his evidence that his brother’s wife saw him off to the road junction at Ipata and that the police slapped his brother’s wife who told the police the accused was going to Ilesha. Under cross-examination, 2nd accused said after 3 months that he had been remanded in prison custody, he gave the prison official money to help him contact his brother at Isale Koko. His brother visited him once while he was in prison custody. When asked about the where about of his brother then, he said he learnt he has died. He didn’t tell the court that any other relation of his came to the prison to give him the news of his brother’s death. The court is not told how he managed to hear about his brother’s death, perhaps it is one of the made up lies to make it impossible to detect the lies about a brother who lives at Isale Koko. PW2 identified the 2nd accused as the person that tied him. There is no proof before me that the accused persons ever raised this defence of alibi during the investigation time. The plea of alibi here is so weak compare to the evidence of PW2 who said it was 2nd accused that tied him while the 3rd suspect was in his apartment to rob him. Although, where the story of the accused person, if believed, is capable of providing a defence of alibi there is a duty on the prosecution to investigate the story. However, the prosecution does not have to investigate every alibi however improbable. As earlier said, there is no proof before me to show that the accused raised a defence of alibi at the investigation stage”.

At pages 89 – 90 of the record, the appellant clearly stated concerning his involvement with the police right from his arrest as follows:-
“I am Ganiyu Idiris I live at Ijebu, am a native of Ijebu and am a farmer… I was first arrested before him. The allegation against me in this case is false. I did not rob on 26/01/2010. I left Ijebu at about 11:00 am. I came to Ilorin around 5:00 pm. I dropped at Saw Mill Garage.
My elder brother lives at Isale Koko Ilorin… when I got to mg brother’s house, his wife told me he has travelled to Ilesha. I wanted to go same dag but it was too late, mg brother’s .wife said it was almost 6:00 pm. I should go the following day. Early in the morning the following dag at 6:00 am, my brother’s wife saw me off to the road at the junction of Ipata and said I could get a taxi from there ….. I was also handcuffed and they tied mg leg also. I told them to go to Isale Koko to go and asked (sic) my brother’s wife but they refused”.

In Amodu vs. The State (supra) at page 81 paragraph C, the court held thus:-
“The defence of alibi is complete once the accused person discloses to the police his where about without more at the time of the commission of crime. There is no burden of proof on the accused who puts forward an alibi to refer to any burden as resting on an accused person in a case where he raised the plea of alibi. See Yanor vs. The State (1965) NWLR 337, State vs. Azeez (2008) 14 NLWR Pt 1108 at 439”.

The learned trial judge did not consider the defence of alibi raised by the appellant contrary to well settled position of the law in this regard. In Jeremiah vs. State (2012) 14 NWLR Pt. 1320, 248 at 281 Paragraph F – G the court held thus:-
“It is trite law that in a criminal trial, any defence raised by an accused person must be considered, however stupid. It is also settled law that any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable”

In response to issues 2 the respondent’s counsel Kamaldeen Ajibade the Attorney General and Commissioner for Justice submitted that the learned trial judge was right to have disregarded the make shift alibi raised by the appellant as same lacks any evidential basis.
In brief reply to the submission of the appellant the appellant did not raise the defence of alibi at the earliest opportunity. Alibi raised at the earliest opportunity must be contained in the statement made on arrest by an accused person. There is nothing before the trial court suggesting that any alibi raised at the earliest opportunity. Even the confessional statements tendered and rejected by the trial court did not contain anything close to an alibi by the appellant.

In Mohammadu Mumah Yalia vs. The State an unreported decision of this Honourable Court delivered on the 9th day of December, 2013 in Appeal No. CA/IL/C.47/2013 where his Lordship Per Uchechukwu Onyemenam JCA illuminating on the position of alibi as a defence in criminal liability put the position thus:-
“Really there is nothing extra ordinary, hermetic or impervious in the defence of alibi. The defence presuppose the physical impossibility of an accused person’s guilty by a fixing him in a location other than the scene of crime at the time the crime was committed. Therefore although the prosecution is under legal duty to investigate the alibi story of the accused person, there is no specific, fixed or in commutable way of doing the same. As such if the prosecution can by credible evidence unequivocally pin the accused to the locus in quo as the one who committed the offence, then the defence of alibi crumbles.
See Otunba E. C. Sowemimo and another vs. The State (2004) 17 NWLR (Pt. 885) 515, Njovens vs. The State (1973) 5 SC. 17. In such scenario where the accused person has been fixed to the scene of crime, failure to investigate the alibi by the police will not result to the acquittal of the accused person. The failure in such situation will merely be atiose. See Ebri vs. The State (2004) 11 NWLR (Pt. 885) 589. The position of the law seems set, that where an accused person raised a defence that his alibi was not investigated, he can still be convicted if there is stronger, convincing and credible evidence before the court which renders the alibi false hood. See Aiguobarueghian and Another vs. State (2004) 1 SC (Pt. 1) 65 or (2004) 3 NWLR (Pt. 860) 367”.

Further submitted that having led strong, concrete and positive evidence, fixing the appellant at the scene of crime, the make belief alibi raised at trial court must necessarily fail.
See Ikechukwu Sunday vs. The State (2010) 44 NSCQR 1 at 30.
I have perusal of the legal submission of both parties.
I realized and resolved that the defence of alibi in this appeal will not avail the appellant. I have rejected the defence as lacking in any merit.

In Nwaturuocha vs. State in suit No. SC 197/2010 delivered on 11/3/2011. The Supreme Court held that:-
“where the appellant was identified by the prosecution witness, without any equivocation, a straight issue if credibility will arise, that is to say where an alibi has been raised and there is visual positive identification of the accused which is believed by the trial court, the appellate court should not disturb such a finding i.e. where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him. Per J. A. Fabiyi JSC His Lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt, and would not be stretched beyond reasonable limit otherwise it will cleave”.
Therefore issue 2 that covered grounds 2 and 3 of the grounds of appeal has no merit and accordingly resolved against the appellant.

ISSUE 3
Whether the learned trial judge was right when after rejecting the appellant’s extra-judicial statement in evidence it still went ahead to hold that the respondent established the offences of robbery and criminal conspiracy against the appellant.

Sheri Ibiwoye Esq. with Taiye Oniyide Esq. Learned counsel for the appellant submitted that the learned trial judge was wrong when it held that the respondent established the offences of robbery and criminal conspiracy against the appellant.
They further submitted that for criminal conspiracy to be proved, the prosecution must establish 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 respondent in this case failed to establish any agreement between the appellant and any other person to commit criminal conspiracy in this circumstance. It is on record that the appellant denied knowing the person he was jointly charged with at the lower court. (please see pages 89-90 of the record) He denied committing the offences levied against him (pages 60-61 of the record). This piece of evidence was neither rebutted nor challenged under cross-examination.

They further submitted that it is settled law that in criminal cases, the burden is on the prosecution to establish the guilt of all accused person beyond reasonable doubt. Every ingredient of the offence(s) charged must be established to that standard of proof that leaves no reasonable doubt as to the guilt of the accused.
The burden never shifts on the accused to prove his innocence.
See Rabiu vs. State (2010) 10 NWLR Pt. 1201, 127 at 155 – 156 paragraph E-A.

In Nwaturuocha vs. State (2011) 16 NWLR Pt. 1242, 170 at 183 paragraph F-G 191 paragraphs E-E the Supreme Court held thus:-
“It is now firmly established that the essential ingredients of the offence of robbery as stated in the case of Bello vs. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows:-
(a) That there was a robbery or series of robbery.
(b) That each robbery was an armed robbery.
(c) That the accused was one of those who robbed”.

They further submitted that the appellant strongly denied robbing PW2 or any other person at any time. He denied knowing one Olayinka Mayowa Adebayo with whom he was jointly charged or the third person at large. He stated unequivocally that he saw Olayinka Mayowa Adebayo and the third person now at large for the first time after he was arrested. The appellant denied specifically being the owner of the exhibit tendered.

They further said from the evidence available at the lower court the acts of the appellant did not come within the confines of the particulars of the offence with which he has been charged and/or convicted. The conviction and sentencing of the appellant is unjustifiable. In Afolabi vs. State (2010) 6-7 MJSC 187 at 219-220 paragraph G-A where the court held thus:-
“Before a trial comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the particulars of the offence charged”.
In Abiodun vs. FRN (2009) 7 NWLR (Pt. 114) 489 at 509 paragraphs E-G where it was held that:-
“Where the prosecution fails to prove a vital ingredient of an offence, the conviction of an accused person will be quashed”.

In response to this issue No. 3, the respondent’s counsel Kamaldeen Ajibade Esq. Attorney-General and Commissioner for Justice submitted that the learned trial judge was right to have held the prosecution established a case of robbery and criminal conspiracy against the appellant despite the rejection of the appellant’s statement in evidence. The learned trial judge on pages 108-109 of the record highlighted the confederacy role played by each accused person in furtherance of their common criminal intention all geared towards committing this offence. He submitted that the prosecution led cogent and compelling evidence to show that the appellant acted in concert with other armed robbers to rob PW 2. These evidence include:-
a. The role played by each accused person at the scene of crime.
b. The fact that PW6 in his evidence before the trial court established that it was the phone call of the 3rd accused person that led to the arrest of the appellant and his cohort.
c. The fact that they jointly broke the police cell to escape at, “A” Division police station the primary point of arrest which led to the dismissal of the police on duty.

It is the argument of the appellant that no evidence exist to link him with the robbery. This argument betrays the evidential position before the trial court. This is because it is not in doubt that the appellant were positively identified by the assailant immediately after the arrest. And the items stolen from the victims were recovered in the hands of the appellant and cohort.

He further said that it matters not in a charge of conspiracy who did what towards effecting a common criminal agenda, the law will always hold-co-conspirators liable for the act of his mates for as long as they share common criminal intention it follows therefore the fact that the runaway armed robber was the person who hit PW2 with a pestle and the fact that he was the only person arrested at the scene of crime does not dismiss the criminal liabilities of the co-robbers, who in this case is the appellant and his co-accused person. He further said that the prosecutions inability to arraign the 3rd accused/armed robber along with others was not a deliberate action but simply because the 3rd accused along with the appellant and his co-accused broke through the police detention at “A” Division the primary point of their arrest and escape while the detention officer was trying to bring in another detainee. See page 69 of the record. The whole argument of the defence of the appellant before the trial court goes to no issue as the evidence led kept pleading to high heavens for evidential support. His defence was poros, frivolous and lacking in fluidity that no reasonable tribunal will ever believe same. I am of the view that from the evidence of PW2, PW3, PW6, and PW7 the trial court, contrary to Section 97 of the Penal Code had been proved as well as robbery, the stolen items having been recovered from the appellant and his colleagues shortly after the incident.

The learned counsel for the appellant properly defined criminal conspiracy and what needs to be proved by the prosecution, that is, an agreement by two or more persons to do or cause to be done illegal act or a legal act by illegal means. See Omotola vs. The State (2009) 7 NWLR (Pt. 1139) 148 at 191-192 paragraph B-A.
As rightly argued by both parties, the offence of conspiracy is rarely capable of proof by direct evidence, therefore the courts have over the years developed a way of establishing same by way of inference. Therefore the criminal acts of the conspirators infer a prior agreement.

In the present case inferences of the conspiracy could be drawn by the role each of the accused persons played at the scene as shown by the prosecution witnesses. The PW 6 testified that in his presence he made the 3rd suspect of the gang put a telephone call across to the appellant and his colleagues that led to their arrest. The call was that they should meet at Ipata. Therefore I am of the view that the appellant and his colleagues had a common criminal intention or agreement and that the parties focused on the achievement of their common goal.

Having gone through the record of the court, and submissions of both counsels, I hereby resolved that issue 3 that related to grounds 4, 5, and 8 has no merit in this appeal. In Odiji vs. State (1976) 6 SC 152 and Oduneye vs. The State (2001) 2 NWLR part (697) 311 (2001) 1 SC (part 1) 1 where it was decided by the Apex Court that from the circumstantial evidence surrounding the particular case, the conspiracy to commit the offence could be properly inferred. In the present case it is immaterial that it is the person at large that hit the PW2 with a pestle and was the one who was arrested at the scene. The important thing is that the appellant and other two persons were acting in concert, and had a common criminal intention.

ISSUE 4
“Whether the learned trial judge was right when he convicted and subsequently sentenced the appellant to 21 years imprisonment based on the purported identification of the appellant by PW2”.

The learned counsel Sheni Ibiwoye Esq. with Taiye Oniyide Esq. on behalf of the appellant said it is on record that PW2 (Pastor Olowe Adekunle) PW’s wife and their daughter had reasons however slight to sight the appellant. These three individuals are the alleged victim of the armed robbery attack since PW 3 (Jide Allen) stated in his evidence that he could only identified the 3rd suspect now at large and not the appellant. They submitted that from evidence on record it is not in doubt that PW 2 and the appellant have never met before. Their first acquaintance was during the commission of the offence. That PW 2 who alleged that he and his family members were locked in a room was indeed confronted by the robber for a very short time. He (PW2) certainly did not have full opportunity to observe the features of the appellant.
The above situations are reasons among others why a proper identification parade ought to have been conducted by the police that investigated this case before convicting and subsequently sentencing the appellant to 21 years imprisonment.

They further submitted that it is the law that proper identification is very important in the trial of an accused person especially where circumstance exist to cast doubt on the identity of the accused more so in a situation like this when the appellant has been sentenced to 21 years imprisonment.

As the Court put it in Ani vs. The State (2009) 16 NWLR part 1168 pages 443 at 460 paragraphs D-E per Tobi JSC.
“Identification of an accused person in the commission of a crime is a most serious exercise in the administration of criminal justice as it creates the link between the accused and the offence. Accordingly a court of law cannot speculate that a complainant might have or must have disclosed the person or persons who committed the offence where there, is no evidence to draw such a conclusion”.

They further said it is trite that in robbery cases, proper identification parade ought to be conducted. The identification of the appellant here in is blurred and fuzzy. The appellant was not apprehended at the scene of the crime at the time it took place therefore formal identification parade was necessary. In Martins vs. State (1997) 1 NWLR Pt. 481, 355 at 370 paragraphs B-G where the court held thus:-
“One of the issue of formal identification parade I hold that it is sometimes necessary especially in cases of robbery. An identification parade is on most cases useful to link an accused person with his participation in or commission of the alleged offences otherwise it may be difficult to connect the offender with the commission of the crime especially when the accused has not been caught or apprehended there and then at the scene.
In other words, where the identification of the alleged offender is blurred and fuzzy then formal identification parade becomes necessary … That being so, the facts of a particular case may prove that identification parade is necessary, and failure so to do may be fatal to the prosecution’s case. Bozin vs. State supra at page 472”.

In response on behalf of the respondent the Commissioner for Justice learned counsel Kamaldeen Ajibade Esq. submitted that from the peculiar circumstances of this case, the identity of the appellant and his cohorts were not in doubt before the trial court.
The learned trial judge adequately gave this issue its proper attention on page 107 of the record and his finding on this is unassailable.

In Adisa vs. The State (1991) 1 NWLR (Pt. 1268) 490 at 506 paragraph B-D, Tobi JCA (as he then was) identified two circumstances under which an identification parade is unnecessary in an investigatory process. The first is when the suspect, the subject of the identification is caught in the process of committing the offence or immediately after and the second is when he admits committing the offence. Attorney General and Commissioner for Justice learned counsel Kamaldeen Ajibade Esq. said the appellant was arrested less than four hours to the commission of the crime when he answered and responded to the call of his co-partner in crime at Ipata market believing that his co-accused had also escaped from the scene and on his arrest he was positively identified by the victim of the crime PW2 and his neighbor PW3.

He further submitted that this argument lacks no focus and as such quite misconceived. In any criminal case of this nature, the prosecution is not bound to call every witness present at the locus criminis. It is only bound to call witnesses who would give relevant evidence in proof of its case. See Iziren vs. The State (1995) 9 NWLR (Pt. 420) Page 385 at 390.
He further submitted that the non-calling of other family members who witness the crime and who were not listed in the proof of evidence will add no value to the cogent, direct and compelling evidence of the prosecution. This is in view of:-
(a) Lack of break in the sequence of events leading to the arrest of the appellant.
(b) Immediate identification of the appellant by the victim and
(c) Recovery of the items stolen from the appellant shortly after the robbery.

I have gone through the submissions of both counsels. It has been argued by the learned Sheni Ibiwoye Esq. with Taiye Oniyide Esq. counsel for the appellant that the prosecution ought to have called the wife and daughter of PW2 to give evidence. What I have seen is that it is the law that the prosecution is not bound to call every witness present at the scene of the crime but, rather the witness who would give relevant evidence in proof of its case. In this case if the evidence of PW2 and the others called are enough to prove the prosecution’s case that should suffice. There was no need to call whole of witnesses whose evidence would add nothing to the case made out of the prosecution. In this case, there was a sequence of events from the time of the incident to a few hours later when the appellant and his colleagues were arrested the same day which led to a prompt identification of the appellant by the victims of the crime and the recovery of some of the stolen items from one of his colleagues shortly after the incident.

In the instant case, I am of the view that the identification parade of the appellant was superfluous considering the fact that one of his colleagues was arrested in close proximity to the scene of crime, he got in touch with the appellant and others shortly after and were promptly arrested by the police, the parade was not necessary. It is immaterial that the appellant in his evidence in the trial court denied ever knowing the others before the incident of 27/01/2010.

The learned trial judge at page 107 of the record concerning identification parade said thus:-
“In the circumstances of this case, one of the culprits was arrested near the scene of crime, items were recovered from him, PW2 identified him as the person that hit him with pestle, the three accused persons under electricity light were with PW 2 for about one hour and PW 2 identified 2nd accused person as the one who tied him with rope. The person that was arrested at the vicinity was the one that called these other two accused persons and they arranged to meet at Ipata and these two accused were arrested at the proposed meeting point at Ipata by 6’s team.
With these evidence before me I hold that there is no need for identification parade. The evidence before the court is overwhelming that these two accused persons with the 3rd suspect at large carried out the robbery that took place in PW 2’s house on the fateful day and the attempt at PW 3’s apartment on the same day”.

The above view of the learned trial judge cannot be disturbed or faulted. I agree with same as well as preferred the submission of the Attorney General and Commissioner for Justice. I also rejected the learned Sheni Ibiwoye Esq. with Taiye Oniyide Esq. counsel for the appellant concerning the identification parade. Identification parade in this appeal was not necessary. I hereby resolved that issue 4 which related to ground 6 has no merit and accordingly in favour of the respondent.

ISSUE 5
Whether the learned trial judge was right to have relied on the case of Dr. Oduneye vs. State (2001) 5 NSCQR page 1 at 11, (2001) 2 NWLR part 697, 311 to infer that the appellant criminally conspired with another to commit the offence of robbery.

Learned counsel Sheni Ibiwoye Esq. with Taiye Oniyide Esq. on behalf of the appellant submitted that for the inference that an accused person committed the offence alleged against him to be drawn from surrounding circumstance(s) must be positive, direct, unequivocal and must also irresistibly lead to the inference that it is the accused that committed the crime.

The respondent did not establish common intention between the appellant and others to commit a crime. The appellant’s alleged confessional statement was rejected in evidence for being involuntarily made. The appellant’s evidence denying his involvement in the robbery was firm and remained so even under cross-examination. We submitted that the learned trial judge wrongly relied on the case of Dr. Oduneye vs. State (supra) among others to convict and sentence the appellant to 21 years imprisonment because the facts and circumstances that led to that decision is different and distinguishable from the circumstances of this case. We submitted that the learned trial judge was wrong to have drawn inference from non-existing circumstances in convicting and sentencing the appellant to 21 years imprisonment for the offences of criminal conspiracy and robbery. Reliance on the case of Dr. Oduneye vs. State (supra) in convicting and subsequently sentencing the appellant to 21 years imprisonment has not only denied the appellant of his right to fair hearing/trial but has occasioned a miscarriage of justice on the appellant.

Learned counsel Kamaldeen Ajibade Esq. Commissioner for Justice in his response on behalf of the respondent said the learned trial judge was right to have relied on the Supreme Court decision in Oduneye vs. The State (2001) FWLR (Pt. 38) 1203. One noticeable and most enterprising principle established from Oduneye’s case is the fact that the appellant was identified two years after the commission of the crime by PW1 who was one of the aids of the deceased. The Supreme Court held the identification to be proper in law.
He further submitted that shortly after the commission of the crime at about 3:00 pm that day, the arrested accused person put a call to the others who had already escaped from the scene of crime. They others including the appellant responded and they were arrested by the police. This is a clear manifestation of common intention.

He further submitted that no facts and circumstances of two cases can ever be the same but the legal principle established by them may be the same for all purposes. The striking similarity of this case and Oduneye’s case is the fact that the accused persons were positively identified by eye witness account and the victims of the crime. But in Oduneye’s case while it took the appellant two years to be identified after the incident. In this case the appellant was identified and arrested less than 4 hours after the incident. In the instant case the learned trial judge was also in tandem with the Supreme Court when she rightly inferred conspiracy from the evidence of PW2, the victim of the crime and PW 6 the police officer who arrested the appellant and his cohort shortly after the commission of the crime.

After perusing both parties on Dr. Oduneye’s case, I would say that every case must be examined along with its surrounding circumstances. Even where the extra judicial statement of the accused person is utilized (even where confessional statement) to infer conspiracy or the commission of any other offence, other factors outside the statement would also be examined before a decision is arrived at.

In Oduneye’s case the Supreme Court inferred conspiracy from the testimonies of other witnesses who were present at the scene of the crime. The learned trial judge in the present case inferred conspiracy from the other pieces of evidence, the evidence of PW2, the actual victim of the crime and PW6 the investigating police officer who arrested the appellant and his colleagues shortly after the commission of the crime.

The fact that the extra judicial statement made by the appellant was rejected in trial within trial proceeding in the trial court, the court held that it was not voluntarily made does mean the complete exoneration of the appellant as one of the conspirators or robbers as urged by Sheni Ibiwoye the learned counsel for the appellant. The appellant knew the second accused person and the person at large. I therefore disbelieved his evidence that he did not know his other colleagues in agreement with the decision of the trial court.

In my view the trial court properly drew inference of conspiracy from the circumstances of this case and I can not disturb same. The learned counsel Sheni Ibiwoye for the appellant has not offered any contributing explanation concerning the phone call made by the 3rd suspect at large to the 1st and 2nd accused persons, also the arrest of these two accused persons at Ipata about the same time. The appellant has not denied the circumstances leading to the phone call put across to him and his other colleagues and has not denied or offered any contributing explanation for responding to the said phone call and going to Ipata market to meet up the 3rd suspect who he imagined had also escaped from the scene of the crime only to be arrested by the investigating police officer who coincidentally happened to have been among the team that arrested the appellant, and his other colleagues over the previous Akure incident. I resolved that the appellant and his other colleagues had a common criminal intention which they carried out which also justified the inference the trial court was right to have applied the case of Oduneye (supra) to arrive at its decision.

The issue of lack of hearing raised by learned counsel Sheni Ibiwoye for the appellant was fully and carefully heard before the trial court at its decision. There was no miscarriage of justice as we have been urged to hold. I resolved that issue 5 which related to ground 7 has no merit and hereby dismissed the appeal.

The judgment of the learned trial judge M. A. Folayan Justice of the High Court of justice Kwara State in suit No. KWS/42C/10 delivered on the 31st day of July, 2013 is hereby affirmed.

DR. HUSSEIN MUKHTAR, J.C.A.: I was privileged to read the judgment just delivered by my learned brother, Musa Hassan Alkali, J.C.A, in its draft form. I fully agree with him that, for the reasons set out in the said judgment, this appeal should be dismissed.
I therefore dismiss this appeal on the reasons ably advanced in the lead judgment.

CHIDI NWAOMA UWA, J.C.A.: I agree with the judgment just delivered by my learned brother, Musa Hassan Alkali, JCA dismissing the appeal.
I also affirm the judgment of the trial Court in Suit No. KWS/42C/10 delivered on 31/7/13.

Appearances

Sheni Ibiwoye Esq with Taiye Oniyide Esq.For Appellant

AND

Kamaldeen Ajibade Esq. Honourable Attorney General and Commissioner for Justice Ministry of Justice, Kwara StateFor Respondent