IFEANYI OKAFOR v. THE STATE (2018)

IFEANYI OKAFOR v. THE STATE

(2018)LCN/11626(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of June, 2018

CA/B/179/2010

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

IFEANYI OKAFOR Appellant(s)

AND

THE STATE Respondent(s)

RATIO

WAYS THE PROSECUTION CAN DISCHARGE THE BURDEN OF PROOF

What should perhaps, be stated here as corollary to the above, is the fact and from which the prosecution gets a modicum of succor that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;

a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012. PER OHO, J.C.A.

WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE TESITIMONY OF THE PROSECUTION WITNESS THAT ARE FATAL TO ITS CASE

On the contention of the Appellant that there were contradictions in the evidence of the witnesses of the Prosecution, the position of the law is that apart from the fact that contradictions must be material, minor variances which occasionally occur between what one witness says and what another has said does not amount to contradictions. In short, it is not every contradiction in the testimony of the prosecution witnesses that are fatal to its case. Where such contradictions are not substantial and fundamental to the main issues in question before the Court, they are not fatal to the prosecution?s case. See NASAMU vs. THE STATE (1979) 6- 9 SC 153; KALU vs. THE STATE (1988) 4 NWLR (PT.90) 503. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Edo State sitting at Auchi Judicial Division Coram: EFE IKPONMWONBA, J delivered on the 2nd day of March, 2010 wherein the Court below convicted and sentenced the Appellant who was Accused person for the offences of conspiracy and Armed Robbery punishable under Section 5(B) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990. The lower Court?s judgment is at pages 56-57 of the records.

?At the trial, three (3) witnesses testified for the prosecution while the Appellant testified in his defense and called no witnesses. At the close of evidence the Appellant was discharged in three (3) of the five counts charge due to failure of the prosecution to prove the counts. At the conclusion of trial the Appellant as Accused person was convicted and sentenced to death. Dissatisfied with the judgment of the Court below, the Appellant has Appealed to this Court vide a Notice of Appeal filed on the 15-3-2010.

The Notice was further Amended on the 9-10-2012 and deemed filed on the 1-11-2017. There are four (4) Grounds of Appeal filed which are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. That the decision of the learned trial Judge is unwarranted, unreasonable having regard to the evidence.
2. The learned trial Judge erred in law when he ignored the material contradiction in the evidence of the prosecution witnesses.
3. The learned trial judge erred in law when he convicted the Appellant based on the purported confessional statement when the making of the said confessional is riddled with doubt.
4. The learned trial judge erred in law and caused a serious miscarriage of justice when he held that the prosecution has proved its case beyond reasonable doubt.

ISSUES FOR DETERMINATION;
Three (3) issues were nominated for the determination of this Appeal by the Appellant as follows;
?1. Having regards to the discrepancies in the evidence of the prosecution witnesses which raises doubt in the case of the prosecution whether the learned trial judge was right to convict the appellant of the offence of conspiracy and armed robbery in counts 1 and IV of the charge. (Ground 2)

2. Whether the learned trial judge was right when he relied on the confessional statement of the appellant to convict him with regards to the doubt surrounding the making of the said statement. (Ground 3)
3. Having regards to the principle of law guiding criminal prosecution and the contradicting nature of the evidence of PW1 and PW2 vis–vis their statement to the police whether the Prosecution really proved the charge against the Appellant beyond reasonable doubt. (Ground 4)

On the part of the Respondent, three (3) issues were also nominated for the determination of this Appeal as follows;
1. Whether there were any material contradictions in the evidence of the Respondent’s witnesses sufficient to warrant the discharge of the Appellant in Counts I and IV (Ground Two).
2. Whether there were any doubts surrounding the making of the confessional statement of the Appellant sufficient to have prevented the learned trial Judge from relying on it to convict him (Ground Three).
?3. Whether the Respondent indeed proved Counts I and IV of the charge against the Appellant beyond reasonable doubt as required by law (Ground Four).

A careful perusal of the issues nominated by learned Counsel to the parties clearly shows that the issues nominated by both sides of the divide are identical except for reasons of semantics. For this reason therefore, this Appeal shall be decided based on the issues nominated by the Appellant. The Appellant?s undated Brief of argument, settled by OLAYIWOLA AFOLABI ESQ., was filed on the 9-10-2012 but deemed filed and served 26-4-2018, while the Respondent?s Brief dated 11-5-2015 was settled by A. O. OKUNGBOWA ESQ., and filed on the 12-5-2015 and deemed filed and served on the 1-11-2017. At the hearing of this Appeal on the 26-4-2018 learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL;
APPELLANT;
ISSUE ONE;
Having regards to the discrepancies in the evidence of the prosecution witnesses which raises doubt in the case of the prosecution whether the learned trial judge was right to convict the appellant of the offence of conspiracy and armed robbery in counts 1 and IV of the charge. (Ground 2)

The contention of learned Counsel is that from the totality of the evidence adduced at the trial Court the prosecution failed to justify the onus placed on it by proving the three ingredients of the offence of armed robbery. He said that at best what the prosecution succeeded in establishing is that there was an armed robbery incident. But could not prove that the appellant was one of those who took part in the armed robbery as the evidence of the PW2, a victim of the robbery incident and PW1 who is an occupant in the house where the robbery took place is contradictory. He argued that this raises a cloud of doubt on the issue of whether the Appellant was among those that robbed the occupants of No.1, Yabma Close, Off Warrake Road, Auchi on the 29th day of May, 2007 or the appellant was a victim of circumstance who was held in place of the armed robbers when the robbers, were being pursued after escaping from the scene of crime.

?Counsel said that PW1 gave evidence and stated in his examination in chief facts different from the evidence of the PW2, a victim of the alleged robbery.

Counsel argued that the evidence of the prosecution witnesses who testified on how they got hold of the appellant at the scene of the crime, their, oral testimony in Court varies and this contradiction cast a serious doubt in the case of the prosecution which doubt ought to be resolved in favour of the appellant.

Counsel submitted that the only conclusion that this Appellate Court can draw from such conflicting evidence is that favourable to the Appellant as the trial Court cannot pick and choose between two contradictory evidence as the learned trial judge did in the instant case when he choose the evidence of PW2 against the evidence of PW1. Counsel referred to the cases of EKPOISONG vs. STATE (2009) 1 NWLR (PT. 1122) 354 @ 370-371 PARAS H-C; ATTAH & ANOR vs. THE STATE (2010) 183 LRCN @ 21 PARA U-JJ.

?Learned Counsel also referred to the evidence of the PW1 where he stated under cross examination that he knew the appellant before the case and that the appellant is a butcher but yet failed to mention this salient fact in his statement to the police that the appellant whom he knows was among the robbers trying to escape. Counsel also made an issue out of the PW2?s testimonies

when he identified the appellant as one of the robbers that entered his room to rob because the robbers were not masked. The contention of Counsel is that the witness failed to mention in his statement to the police when the incident was still very fresh in his mind that the appellant was one of the robbers that entered his room during the robbery operation only for PW2 to recount this while giving evidence that it was the appellant and another that entered his room.

It was the submission of Counsel that if a complainant or an eye witness fails to mention the names of the person he said he saw committing an offence in his statement to the police, a Court must be careful in accepting such evidence. He cited the cases of ISAH vs. STATE (2008) 18 NWLR (PT. 1119) 285 @ 294, 295 paras A-F; UDEH vs. STATE (1999) 7 NWLR (PT. 609) 1, ADELOYE v POLICE (1959) WRNLR 100; POLICE vs. ALAO (1959) WRNLR (PT. 1) 39; EYISI vs. STATE (2000) 15 NWLR (PT. 691) 555.

Arising from the foregoing, Counsel submitted that where there are questions that raise clouds of doubt, no Court can or is allowed to ignore such in a criminal trial.

He said that the Court has to be absolutely sure before it convicts so as not get the innocents punished without cause. He urged the Court to resolve this issue in favour of the appellant.

ISSUE TWO;
Whether the learned trial judge was right when he relied on the confessional statement of the appellant to convict him with regards to the doubt surrounding the making of the said statement?

The contention of Counsel under this issue is that the Appellant?s purported confessional statement obtained and marked as Exhibit ‘A’ cannot stand the test of criminal jurisprudence as there are serious doubts as regards the making of the confessional statement. The argument of Counsel is that the Supreme Court has held in a plethora of authorities that where the statement of an accused person is obtained under threat, that statement should not be admitted in evidence. He cited the case of OZAKI vs. STATE (1998) ALL CRIMINAL LAW REPORT VOL. 1 27 @ 33 RATIO 14. Counsel told Court that the Appellant testified in his defence at the trial within trial and stated at pages 31 of the record that he made a statement to the Police but that it was when he was being beaten that he made the said statement that he robbed and was taken from Auchi to SARS in Benin.

The submission of Counsel is that from the two signatures of the Appellant on his statement which can be found at page 11 of the records, they are quite different and that it was for that reason that the Appellant was made to thumbprint the statement so that he could not deny making the statements. The further submission of Counsel is that the differences in the Appellant?s signature was as a result of the torture he received before he was made to sign the statement as one would wonder why any person after signing a document would also thumbprint the same document, except in a situation when one is being coerced against his will.

?Learned Appellant?s Counsel also submitted that if the learned trial judge had considered the whole evidence in this case with care and in the light of the defect pointed out earlier he would not have come to conclusion he did that the prosecution had proved counts 1 and 4 beyond reasonable doubt. He further submitted that the case of the prosecution is clouded with doubt, meaning that the onus placed on the prosecution has not been

discharged. Counsel finally urged the Court to resolve this issue in favour of the Appellant and allow this appeal.

ISSUE THREE;
Having regards to the principle of law guiding criminal prosecution and the contradicting nature of the evidence of PW1 and PW2 vis–vis their statement to the police whether the Prosecution really proved the charge against the Appellant beyond reasonable doubt.

In respect of this issue, Counsel submitted that the evidence of a witness in the course of trial should be consistent with his or her statement made to the police. According to Counsel, the PW1 and PW2 made statements to the police and their testimonies in Court contradicted one another. Counsel stated that the PW1, under the heat of cross examination admitted that he knew the Appellant before the robbery and that he did not make this known to the police when he made his statement at a time when the matter was fresh in his memory. Counsel cited the case of AMUSA vs. STATE (2002) 2 NWLR (PT. 750) 73 @ 78 R. 6 on the consequences of witness making a previous statement which becomes inconsistent with the evidence he has given in Court.

Counsel also cited the case of EFFIONG JONNY EKAIDEM vs. THE STATE ALL FWLR (PT. 631) 1587 @ 1591-1592 on the failure to mention the name of an accused person at the earliest opportunity and the consequences of failure to do so. Counsel also argued that the PW1 and the PW2 gave different versions of how the accused person was caught.

The argument of Counsel is that in the instant case, prosecution failed woefully as the contradiction in the evidence of its witnesses were not explained under re-examination nor in his address to the Court after the defence has closed its case. Counsel cited the case of AIGBADION vs. STATE (2000) 7 NWLR (PT. 666) 686 @ 688. Counsel urged this Court to resolve this issue in favour of the Appellant.

RESPONDENT;
ISSUE ONE;
Whether there were any material contradictions in the evidence of the Respondent’s witnesses sufficient to warrant the discharge of the Appellant in Counts I and IV.

The argument of Counsel in respect of this issue is that for contradictions to render the evidence of the Prosecution unreliable, such contradictions must be material. Counsel cited the case of IGABELE vs. STATE (2006) 6 NWLR (PT. 975) 100 AT 110-111, R. 10

wherein the Supreme Court held thus:-
“It is not every inaccuracy in the testimonies of prosecution witnesses that will render such testimonies unreliable. For contradictions in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. The contradictions must be substantial and fundamental to the main issue for them to be fatal to the prosecution’s case. Minor inaccuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb a judgment.”

The submission of Counsel on this issue is that there were no material contradictions in the evidence of the Respondent’s witnesses sufficient to warrant the Appellant being discharged in Counts I and IV. Counsel told Court that the PW1 testified to the effect that on the 30/5/2007 at 12:30 am he heard a strange noise; “Oga na only dat money dey with me”. He opened his window and on realizing that armed robbers were in the area, he called the

vigilante in the area and they all came out and the Accused Person (now the Appellant) was caught while the others ran away. Counsel referred this Court to pages 24 to 26 of the Record of Appeal for the full record of the evidence of this witness.

On the part of the PW2, Counsel said that he testified that he was in his room with his wife when his door was forced open and some persons came in with guns and collected the money they had with them and then they went to the next door; that he heard them asking for handsets from the occupants of the next room, then he heard one of the armed robbers shout and the other one who was outside shouted “mopol yawa don gas” and they began to run. He then jumped out of his window and gripped one of them and it was the Appellant that he gripped; the gun in his (the Appellant’s) hand fell and he (PW2) shouted that he had caught one of the armed robbers. Then they (he and his neighbours) went to the Police and reported and the Appellant was arrested.

?According to Counsel his testimony was in consonance with his extrajudicial statement to the Police, which was tendered and marked as Exhibit “D1”.

The submission of Counsel is that from the evidence adduced by the PW1 and PW2, there were no contradictions in their testimonies rather their testimonies corroborated each other and helped to prove that there was indeed an armed robbery on the night in question, that the Appellant was actually one of the armed robbers who came to rob and that he was caught at the scene of the crime before he could escape with his co-armed robbers.

Still on the question of contradictions, which to be fatal must be material, Counsel cited the cases of ARCHIBONG vs. STATE (2006) 14 NWLR (PT. 1000) 349 AT 359, R. 11; AUDU vs. STATE (2003) 7 NWLR (PT. 820) 516 AT 529-530, R. 18 and further submitted that contradictions or inconsistencies in the evidence or witnesses may occur so long as such contradictions or inconsistencies are not material.

?It was further submitted by Counsel that along the same lines, in the present case, the contradictions, if any, in the evidence of the Respondent witnesses were not material and therefore not sufficient to affect the proof of the Appellant’s guilt, particularly in the light of his confessional statement which was properly admitted in

evidence as Exhibit “A”. Counsel explained that the PW1 significantly, did not say he was the one who personally caught the Appellant. Rather he said: “We came out and pursued the thieves and only the accused person was caught. Others ran.” (Page 24, lines 24 to 26 of the Record of Appeal).

Under cross-examination, Counsel said that the PW1 reiterated at page 25, lines 20 to 21 of the Record of Appeal thus: “yes, we saw the accused person with others at the scene robbing. That is where he was caught. After he was caught, we pursued two (2) and did not get them.”
The submission of Counsel is that the foregoing piece of evidence only means that while the other robbers ran away, only the Appellant could not run away and he was caught. By whom? For the answer to this teaser, Counsel drew attention of Court to the evidence of the PW2 who said at page 26, lines 14 to 17 of the Record of Appeal thus: “I jumped out of my window and grip one of them. The gun he held fell down and I shouted that I had caught one of them. Then we went to the police. The person I held on that day was the accused person.”

We submit that this means that while the residents pursued the robbers, that the PW2 caught the Appellant and held unto him while he called the other residents. PW1 and one Momodu Ikharia were mandated to report to the police and the police went to the scene of the crime to pick the Appellant who was being held by the other residents including PW2. It was further contended by Counsel that there was no substantial mix up or contradiction in the evidence of PW1 and PW2 which would have made it unsafe to convict the Appellant on their evidence. Counsel urged this Court to so hold. Finally, Counsel submitted that there were no contradictions, material or otherwise in the evidence of the Prosecution witnesses sufficient to warrant the Appellant being discharged in Counts I and IV and he urged this Court to so hold and to resolve Issue One in favour of the Respondent.

ISSUE TWO:
Whether there were any doubts surrounding the making of the confessional statement of the Appellant sufficient to have prevented the learned trial Judge from relying on it to convict him.

The submission of Counsel is that the Appellant’s confessional statement was rightly admitted in evidence

and relied upon by the learned trial Judge in convicting him. Counsel further submitted that the Respondent was able to prove during trial that the confessional statement (Exhibit “A”) was voluntarily obtained from the Appellant and that his allegation that he was compelled to make the confessional statement was an afterthought. Counsel cited the case of BASSEY vs. STATE (1993) 7 NWLR (PT. 306) 469 AT 471, RATIO 3, in which this Court laid down the guidelines for testing the veracity of a confessional statement. Against the background of this position, it was submitted that the gun, dagger and beret, which were found on the Appellant when he was caught, point to the fact that the confessional statement was true. It was also submitted by Counsel that the evidence of the Respondent’s witnesses amply corroborated the confession of the Appellant in all material respects and in particular, to the effect that he was in the company of other persons and that while the others ran away, he could not get away and was caught at the scene of the crime and handed over to the Police. The argument of Counsel is that there was sufficient evidence outside the confessional statement to show that it was true.

The argument of Counsel in respect of this issue is that the facts stated in the confessional statement are true as far as can be tested and that the confessional statement was signed by the Appellant and even thumb-printed by him. Counsel stated that the PW3 (who became PW1 in the trial-within-trial) testified during the trial-within-trial at page 29, lines 14 to 26 thus:
“When he was arrested, he was already save (sic) because he had been beaten by the mob. I could not have out (sic) him under duress again to make his statement. I bought an ink pad for him to thumbprint even after he signed. Because of the idea of suspects denying their statements. He confessed to me that it was devil’s work and narrated everything to me voluntarily. After he had signed and I found it was confessional, I informed my DSP that there was need to fill attestation form. I explained to the accused person that it is a back up to the statement. He admits (sic) yes and we marked it. At the end SUPOL Okwali endorsed the attestation form. There was no pressure on him to make his statement. It was not made under duress.”

The further argument of Counsel is that the PW3 in his evidence clearly explained the reason for the thumb-print alongside the signature and that the PW3 had to adopt that technique because of the incidents of accused persons faking signatures and later turning around to deny their statements in Court. He submitted that there is no substantial difference in the signatures of the Appellant in his statement and any discrepancy was a deliberate step taken by the Appellant in anticipation of denying making the statement voluntarily. This was anticipated and put paid to by the PW3 when he, in addition to making the Appellant sign his statement, made him thumb-print it also.

It was further submitted by Counsel that the Appellant had every opportunity of committing the offence. He said that during trial, he made an attempt at a defense at page 38, lines 19 to 27 of the Record of Appeal thus:
“On the 30th May 2007, I was in the market that day, when my Oga left me to sell meat. It rained that day so there was no market. So, I carried the meat while the other boy carried the basins. When I got to the widow (sic) I did not meet the people. One of them came later. He said they (sic) coming from Church.

So I put the meat there and left. Then I went to see my Oga and give (sic) him the money I sold and plan for the next day. When I finished with him, as I was coming back, I got to one street. Some people held me and said I robbed.”

The submission of Counsel here is that the Appellant’s story in Court does not add up as it is difficult to imagine that he was discussing with his “Oga” till around 12:30am (when the robbery took place and he was caught). Counsel further submitted that he was found in possession of a gun, a dagger and a beret and wonders if butchers use guns to sell meat?

It was contended by Counsel that although the proof of the guilt of the accused is on the Prosecution and so too the investigation of the defense of alibi, but that the onus lies on the accused to discharge the evidential burden that he was in fact not at the scene of crime at the time the offence was committed and he was somewhere else. Counsel cited the case of DAGAYYA vs. STATE (2006) 7 NWLR (PT. 980) 637 AT 650, RATIO 15. In the instant case Counsel argued that the Appellant?s attempt at an alibi only served to further fix him to the scene of the crime.

Counsel said that he was caught at the scene of the crime in the middle of the night and yet the only explanation he could proffer was that he was just passing by in the middle of the night with a gun and dagger. The submission of Counsel is that the evidence of the Respondent against the Appellant is too incriminating and overwhelming and his attempted alibi (so to speak) cannot stand in its light. Counsel cited the case of DAGAYYA vs. STATE (Supra).

Counsel also submitted that the evidence of the Respondent in this case unequivocally fixed the Appellant to the scene of the crime and also clearly shows his role and how he was caught. He said that the Respondent supplied superior and more believable evidence than the Appellant in this case. According to Counsel, the facts of alibi are known to the accused and such witnesses as may be available to him and that he should therefore disclose them with necessary details and particulars at the earliest opportunity so as to put the burden on the Police to check on them and deal with them with some finality. Counsel said that if he does not disclose this, the Police cannot be

sent on a wild goose chase. Counsel cited the cases of EYISI vs. STATE (2000) 15 NWLR (PT. 691) 555 AT 563, RATIO 7; ARCHIBONG vs. STATE (2006) 14 NWLR (PT. 100) 349 AT 360, RATIO 12.

Counsel submitted that in the present case, the Appellant did not raise the alibi until he opened his defense and that the Police could not therefore carry out any investigation on the alibi and the Appellant on his part failed to provide particulars as to the time he claimed he was with his “Oga” before he left for home and was apprehended by the people who handed him to the police. Counsel said that he did not also call his said Oga as a witness to corroborate his testimony. It was also submitted by Counsel that the Appellant’s defense was an after-thought and it was rightly disbelieved by the learned trial Judge. Counsel urged the Court to resolve this issue in favour of the Respondent.

ISSUE THREE;
Whether the Respondent indeed proved the charge against the Appellant beyond reasonable doubt?
Learned Counsel submitted that the Respondent proved Counts I and IV of the charge against the Appellant beyond reasonable doubt and consequently, the verdict of “guilty”

and consequent conviction were rightly entered in respect of those Counts by the learned trial Judge. The contention of Counsel is that the Respondent succeeded in proving Count I, the charge for conspiracy, beyond reasonable doubt. According to Counsel, in the confessional statement of the Appellant which was admitted in evidence after the trial-within-trial, the Appellant clearly stated that he was approached by two of his friends and asked to join them in a robbery operation and he followed them (page 9 of the Record of Appeal). Counsel said that this clearly showed an agreement between him and his friends who are now at large to execute an agreed unlawful act which, in this case, was armed robbery. Counsel further stated that there was a consensus ad idem between the Appellant and his friends to go and rob, thus establishing against the Appellant a clear case of conspiracy to commit armed robbery.

?It was also submitted that in this case, the Respondent succeeded in proving all the above stated ingredients of armed robbery in respect of Count IV against the Appellant. He said that the testimony of the PW1 and PW2

unequivocally established that there was a robbery in their house at about 12:30am, on the 30th of May, 2007, and that the Appellant was one of the robbers and he was armed with a double barrel gun and a dagger, that when the robbers tried to escape, the Appellant was caught while the other robbers escaped and the Appellant was handed over to the Police. It was further submitted that the Appellant’s confessional statement which was admitted in evidence after a trial-within-trial, further strengthened the Respondent’s case. The confessional statement is at pages 9 to 11 of the Record of Appeal.

On the reason why the PW1 did not name the Appellant in his statement to the Police at the earliest opportunity, Counsel submitted that it was not necessary for the PW1 to have named the Appellant in his statement to the Police as one of the armed robbers as he (that is, the Appellant) was already known and was in fact, in custody. Counsel therefore submitted that the case of ISAH vs. STATE (Supra), which was cited by the Learned Counsel to the Appellant in support of the argument that the Appellant was not mentioned by the PW1 as one of the armed robbers at the earliest opportunity, does not apply

to this case. He said that in ISAH vs. STATE (Supra), the Accused Person was at large at the time the statements of the Prosecution witnesses were taken by the Police; that both witnesses claimed that they knew the Accused Person very well before the armed robbery incident and that he lived in the area, but when they first reported the matter at the Police Station shortly after each robbery incident, none of the two men mentioned to the Police that they knew any of the robbers; that it was about five days later and after the Accused Person and others had been arrested, that they mentioned his name and the names of some of the others and identified them during an identification parade.

Counsel added that the apex Court had no choice than to arrive at the conclusion that the identification by the Prosecution witnesses was an afterthought and could not be relied upon in arriving at a guilty verdict. For the purpose of emphasis, Counsel submitted that the case of ISAH vs. STATE (Supra) is distinguishable from the present case in the sense that the Appellant was not at large but was caught at the scene of the crime and was already in

custody at the time the PW1 and PW2’s statements were taken at the Police Station; that there was therefore no need for the mentioning of names or an identification parade since the Appellant was caught at the scene of the crime and was already known. Counsel cited the case of UDEH vs. STATE (1999) 7 NWLR (PT. 609) 1 AT 19-20, para. G-A, where the Supreme Court per AYOOJA, JSC while affirming the decisions of the trial Court and the Court of Appeal and consequently dismissing the Appeal, held thus:
“Although in her statements to the police PW1 did not mention the appellant by name as one of the persons who beat the deceased, she later identified the two accused persons, including the appellant, as being among those who beat the deceased, when she saw them in the company of the police in the hospital.
Nowhere did she say she knew the names of the appellant before the incident. There was no inconsistency in the PW1?s statements to the police and her evidence at the trial. Where a witness failed to mention the name of a suspect to the police at the earliest opportunity that would detract from whatever credibility the trial Court may wish to

ascribe to his evidence only if he is shown to have known the suspect by name at the time of the incident.”

Arising from this, Counsel submitted that the PW1 in his statement to the Police after the arrest of the Appellant at the scene of the crime, stated thus:
“The robbers were like confused and made attempt to escape. In the process, we caught one of them who identified himself as Ifeanyi Okafor in procession (sic) of a locally made double barrel pistle (sic), a dagger knife and a cap. We then informed the Police in Auchi who took custody of him.”

Counsel told Court that the above statement is part of the PW1’s statement to the Police at Auchi as is contained at page 7 of the Record of Appeal. Counsel submitted that from the above statement, the PW1 mentioned the name of the Appellant as the name with which the Appellant identified himself when he was caught and that it is irrelevant whether or not the PW1 told the Police that he knew the Appellant in the area as a butcher. Counsel submitted further that the Appellant’s identity was never in dispute.

?In the same connection he said that the PW2 was able to

identify the Appellant as one of the two boys who came into his room and robbed him at gun point; that his statement to the Police at page 17 of the Record of Appeal is inconsonance with his evidence in Court, which is contained at page 26 of the Record of Appeal; that he clearly identified the Appellant as the one who came to his room in the company of another and who he later gripped and held down while the robbers tried to escape. He did not at any time either in his statement to the Police or in his evidence in Court claim to have known the name of the Appellant. The Appellant was caught at the scene or the crime and he (the PW2) who was one of the robbery victims, was able to identify him as one of the armed robbers. We submit that this in no way affects the credibility of his evidence or that of the PW1. Counsel finally submitted that the Respondent, from all the evidence adduced at the trial Court, indeed proved Counts I and IV of the charge against the Appellant beyond reasonable doubt and that the learned trial Judge having no reason to disbelieve the Prosecution’s case, rightly entered a guilty verdict and accordingly convicted the Appellant. He urged this Court to so hold.

RESOLUTION OF APPEAL
The question of the voluntariness and the veracity of the confessional statement of the Appellant admitted as Exhibit A and the attestation by a Superior Police Officer admitted as Exhibit A1 at the Court below was one of the issues vigorously canvassed in this Appeal, alongside the question of the accuracy and/or reliability of the identification of the Appellant vis–vis the eye-witness accounts of what transpired on the fateful date in question. These issues were no doubt subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant?s Counsel who had rooted for a verdict of an acquittal had contended that the trial Court?s decision had occasioned a miscarriage of justice.

?In resolving this Appeal, there may be the need to state the facts of this case, which are largely uncontested between the parties as the foundation of the analysis about to be made by this Court to foster a better appreciation of the issues raised between them. The Appellant as Accused

person was charged with the offences of conspiracy and armed robbery punishable under Sections 5(b) and 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. The case of the Respondent against the Appellant is that on the 30th day of May, 2007 at about 12:30 am the PW1 was at home when he heard a strange noise and a voice. He opened his window and saw some people wearing dark clothes.

?On realizing that they were armed robbers, he called the local vigilante in the area and came out to pursue the robbers. It was in that process that the Appellant was caught with a ?short? double barreled gun, a dagger and a beret while the others ran away and the Appellant was subsequently handed over to the Police. The items in possession of the Appellant when he was caught were tendered in Court and marked as Exhibits “B1”, “B2” and “B3” (see page 36 of the Record or Appeal). The statement of the Appellant in which he confessed to committing the offence was also tendered and marked as Exhibit “A” while the attestation form attached to the Appellant’s statement was also tendered and marked as Exhibit “A1” (see

pages 35 and 36 of the Record of Appeal). The Exhibits were tendered through the PW3 who was the Investigating Police Officer on the case.

On the part of the PW3, he testified to the effect that on the said date, that is the 30th day of May, 2007 he was in his room with his wife when his door was forced open and the robbers held them at gun point and demanded for their money. The robbers took the money with them and went to the next door. Then he heard one of the robbers shout and they began to run. In reaction, he jumped out of his window and held unto one of the robbers, who happened to be the Appellant, before he could get away.

?The comprehensive testimony of the PW1, PW2 and PW3 as well as the testimony of the PW3 and the Appellant in the trial-within-trial are contained at pages 24 to 37 of the Record of Appeal. At the close of the Respondent’s case, the Appellant opened his defense and gave evidence but called no witnesses. The Appellant’s defense consisted of the usual refrain in matters of this nature. It was the Appellant?s denial that he did not make the confessional statement voluntarily and that although he was arrested

at the scene of the crime, he was not one of the robbers. The evidence of the Respondent’s witnesses and the Exhibits tendered, however fixed the Appellant to the scene of the crime and to the commission of the crime. In the course of the trial, the learned trial Judge subjected the confessional statement of the Appellant to a trial-within-trial at the end of the learned trial judge held that the statement was voluntarily made and admitted same as Exhibit “A”.

Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of Armed robbery rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject.

At page 22 of the printed records of Appeal, a reproduction of Exhibit ?A? of the Appellant?s extra Judicial statement to the Police reads as follows;
?Today being 30/5/2007 at about 0025 hours, myself Okwodele, I did not know his father?s name and one Pasino I did not know his father?s name but both of them were living opposite Auchi Market, Auchi; three of us went to house where I was arrested. I was staying outside the house while Okwodele and Pasino went inside the house and started robbing the people living in the house. I only hear people shouting as their were robbing them. I stand out as guard to my people inside the house robbing. Okwodele and Pasino, they were the people that carry gun. When people at Iyeke started running after us Okwodele fall down inside the gutter and myself also fall inside the gutter. When I was trying to get out of the gutter,

I was caught by the people of Iyeke. I don?t know how much money Okwodele and Pasino robbed people inside the house because I am staying outside guarding the road for them

Learned Appellant?s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits ?A? was in the course of trial admitted as confessional statements of the Appellant after the conduct of a trial within trial. Section 27 (1) of the Evidence Act (as amended) defines a confession thus:
?A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
It is further provided in Sub-section 2that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
On the question of weight to be attached to a confessional statement, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING

(1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man?s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?
In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case. It is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case?

The learned trial judge at page 65 of the printed records lines 17 to 22 had this to say on the subject of what the Court believed to have confirmed the story in the confessional statement;
?See Nwosisi vs. State (1976) 6 SC 109. It is desirable to where there is a confession as in this case, for the prosecution to have some evidence, be it slight of the circumstances which made it probable that the confession it true. In this case, I find that there is evidence which makes it probable that the confession of Accused person is true, the Accused person was caught at the scene by someone who saw him, that is whom he robbed.?

the Court, they are not fatal to the prosecution?s case. See NASAMU vs. THE STATE (1979) 6- 9 SC 153; KALU vs. THE STATE (1988) 4 NWLR (PT.90) 503. The Court is in agreement with learned Respondent?s Counsel that the Appellant made a heavy weather of this piece of evidence of the PW2, and tried to create a contradiction where none exists. It is clear from the evidence on the record that the PW1 did not specifically mention that PW2 was among those who caught the Appellant.

?On the defense of alibi put up by the Appellant, the position of the law is that the burden to investigate the Accused person?s alibi rests squarely on the shoulders of the Prosecution but that the Accused has a corresponding duty to discharge the evidential burden that he was in fact not at the scene of crime at the time the offence was committed and he was somewhere else. He has to lead credible evidence in this direction beginning from his extra judicial statement to the Police. In the instant Appeal, where the Appellant lead evidence of his alibi only while he was in the witness box leaves much to be desired. Apart from the fact that the Prosecution has not been

given any opportunity to investigate the alibi, there is overwhelming evidence which fixes the Appellant at the locus criminis.

This Appeal is clearly without substance as it is moribund and it is accordingly dismissed. The judgment of the High Court of justice sitting at Auchi Judicial Division Coram: EFE IKPONMWONBA, J and delivered on the 2nd day of March, 2010 is hereby affirmed.

HUSSEIN MUKHTAR, J.C.A.: I had the advantage of reading in advance the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree. for the reasons ably advanced in the lead judgment, that the appeal is bereft of substance. It is hereby dismissed.
I adopt the consequential orders made in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the lead judgment of my learned brother, Frederick O. Oho, JCA just delivered. I am in agreement with the reasons advanced and conclusions reached in dismissing the appeal.

?Where as in the instant case, there is strong and credible evidence which fixes an accused person at the scene of crime, the defence of alibi fails.

The trial Court having found as a fact that the evidence of prosecution positively, unequivocally and irresistibly point to the guilt of an accused, the defence of alibi becomes useless. See Ebenechi v State (2009) 6 NWLR (Prt 1138) 431, Ndukwe v State (2009) 7 NWLR (Prt 1139) 43 and State v Ekanem (2017) 4 NWLR (Prt 1554) 85.
I also dismiss the appeal and affirm the judgment of the trial Court.

Appearances:

OLAYIWOLA AFOLABI, ESQ.For Appellant(s)

A. O. OKUNGBOWA, ESQ.,(Director, Department Legal
Services MOJ Edo State.)For Respondent(s)

Appearances

OLAYIWOLA AFOLABI, ESQ.For Appellant

AND

A. O. OKUNGBOWA, ESQ.,(Director, Department Legal
Services MOJ Edo State.)For Respondent