ILIYA & ANOR v. STATE (2020)

ILIYA & ANOR v. STATE

(2020)LCN/14444(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/G/172C/19

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. SANI ILIYA 2. BABAGANA YURE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

In our adversarial criminal justice system, the burden of proof of the guilt of the accused, in other words, the establishment of the commission of the offence by the party accused is by proof beyond reasonable doubt. In the case of MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC, Oputa JSC explained what proof beyond reasonable doubt entails as follows:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent In our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice proof beyond reasonable doubt means what it says it does not admit of a high degree of cogency, consistent with an equally high degree of probability.”
See further, the cases of JOSHUA ALONGE V. IGP 1959 1 FSC 203, R V. OLEDINA & 6 ORS 6 WACA 202, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1998 ACCLR 426 and OBIAKOR V. THE STATE 2002 6 SCNJ 193 and Section 137 (1) of the Evidence Act. PER WILLIAMS-DAWODU, J.C.A.

THE CRIMINAL OFFENCE OF ARMED ROBBERY

The 1st and 2nd Appellants were charged with the offences of conspiracy to commit armed robbery and armed robbery. The applicable law, the Penal Code of Borno State provides as follows:
Section 97 (1)
“Whosoever is a party to a criminal conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this penal code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.
Section 298
(b) If the robbery is committed by a person armed with any dangerous offensive weapon or instrument, to imprisonment for life with or without canning.”
The ingredients necessary for proof of the offence of armed robbery are as set hereunder:
i. That there was a robbery or a series of robberies
ii. That each robbery was an armed robbery
iii. That the appellant was one of those who took part in the armed robberies.
Proof of the foregoing ingredients must be beyond reasonable doubt.
See the cases of AFOLALU V.THE STATE 2010 16 NWLR PT. 1220 554, ARUNA V. THE STATE 1990 6 NWLR PT. 155 125, ANI V. STATE 2003 11 NWLR PT. 89 142, NWACHUKWU V. THE STATE 1985 1 NWLR PT. 11 218 and BOZIN V. STATE 1985 LPELR-799 SC. PER WILLIAMS-DAWODU, J.C.A.

WHETHER OR NOT EVIDENCE NOT CHALLENGED OR DEBUNKED BY THE ADVERSE PARTY CAN BE RELIED UPON BY THE CORT

It is elementary that, evidence not challenged or debunked by the other side is good and credible and ought to be accepted as such and relied upon by the trial Court as done by the Court below. See the cases ofNWABUOKU V. OTTIH 1961 2 SCNLR 232, IFEJUNA V. IFEJUNA 1997 7 NWLR PT 513 405, EGBUNA V. EGBUNA 1989 2 NWLR PT. 106 P. 106 and ALHAJI B. OLADAPO V. BANK OF THE NORTH LTD. 2000 LPELR- CA/I/160/98. PER WILLIAMS-DAWODU, J.C.A.

THE CRIMINAL OFFENCE OF CONSPIRACY

Conspiracy to commit an offence is described as the agreement of two (2) or more persons to do an unlawful act or to do a lawful act by unlawful means. In the case of NJOVENS V. STATE 1973 5 SC 12, it was described as follows:
“The overt act or omission which evidence conspiracy is the actus reus and the actus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceasar were seen together coming out of the same place at the same time and indeed conspirators need not known each other…
The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them…”
Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. See the cases of SILAS V. THE STATE 2009 17 NWLR PT. 1169 33, IKEMSON V. THE STATE supra, BALOGUN V. A-G OGUN STATE 2002 2 SCNJ 196 and NDOZIE V. STATE 2016 LPELR 26067 SC.
Ingredients for the offence of conspiracy are the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the accused persons had knowledge of its unlawfulness. See the case of CLARK V. THE STATE 1986 4 NWLR PT. 35 381. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Borno State High Court of Justice, Maiduguri delivered on June 10th 2014, wherein the 1st and 2nd Appellants (1st and 2nd Accused persons at the Court below) were convicted of Conspiracy and armed robbery under Sections 97 (1) and 298 (b) of the Penal Code Law Cap. 102 of the Borno State Laws and each sentenced to life imprisonment.

At the Court below, the Appellants were charged as follows:
THE CHARGE
COUNT 1:
That you Sani Iliya “m” of Hausali Mafa and Babagana Yure “m” of Yamafa on or about the 28th day of June, 2013 at Mafa town of Mafa Local Government Council which is within the jurisdiction of this Honourable Court agreed amongst yourselves to do an illegal act to wit:
Commit armed robbery and in furtherance of the said agreement you robbed one Babakura Alhaji Mamman of his money N2,000 and Buba Umate of his money the sum of N17,900 and you thereby commit (sic) an offence punishable under Section 97 (1) of the Penal Code Law of Borno State.
COUNT II:
That you Sani Iliya ‘m’ of

Hausali Mafa and Baba Gana Yure of Ya’ Mafa on or about the 28th day of June, 2013 at Mafa town of Mafa Local Government Council which is within the jurisdiction of this Honourable Court while armed with dangerous weapons to wit: sticks and knives committed armed robbery in that you robbed Babakura Alhaji Mamman and Buba Umate of their money the sum of N2,000 and N17,900 respectively and in the course of the robbery stabbed Babakura Alhaji Mamman with knife in his abdomen and you thereby committed an offence punishable under Section 298 (b) of the Penal code Law of Borno State.

The matter went to trial and the Respondent (the Complainant at the Court below) called six (6) witnesses and tendered exhibits in proof of their case. The wife of the 1st Appellant was his only witness whilst the 2nd Appellant did not call any witness but testified for himself. The Appellants were both found guilty as afore stated as contained on page 58 of the printed Record before this Court.

As garnered from the Record, the story of the 1st Appellant is that, he was in his house with his wife the morning of June 28th 2013 with an injured leg as a result of football he

played the day before, June 27th 2013. That, he was carried home from the field, got treatment and was home till the next day in his wife’s company only to be woken by the arresting Police Officers on June 28th 2013. The 2nd Appellant for his part claimed that, he was arrested on his way to visit PW3, a victim of the robbery, who was a neighbor and co-worker at the early hours of June 28th 2013 at Mafa Local Government when some youths beat him and got him arrested. That, after investigations at the Police Station Mafa, Mafa town, the matter was transferred to the Anti-Robbery squad, Maiduguri and was thereafter taken to Court.

For the Respondent, the story is that on or about June 28th 2014 at about 0600 hours, the PW3, one Babakura Alhaji Mamman and two (2) others reported at the Mafa Divisional Police Station that about 0200 hours of same date some gang of armed robbers with knives and sticks robbed the PW3 of some money and that the PW3 who identified the 1st Appellant, was stabbed with a knife in the abdomen. He was rushed to the General Hospital Mafa and later to Atal Clinic Maiduguri for treatment.

From the Record, after investigations

at the Police Station Mafa, Mafa town, the matter was transferred to the Anti-Robbery Squad, Maiduguri and thereafter to Court. Being dissatisfied with the decision of the Court below the Appellants have appealed to this Court.

The 1st Appellant’s Notice of Appeal dated July 17th 2014, filed August 14th 2014 as amended and filed on November 4th 2019 and was deemed as properly filed and served on June 8th 2020, contains eight (8) grounds of appeal. The 2nd Appellant’s Notice of Appeal filed August 14th 2014 was amended and filed November 4th 2019 and was deemed as properly filed and served on June 8th 2020.

The Appellants failed to state the reliefs they seek from this Court in their Notices of Appeal which is no doubt a big error and rather careless on the part of the drafters. Be that as it may, in my view and humbly, both Appellants having approached this Court and putting all their processes together, in pursuit of doing substantial justice regardless of the slip, one would proceed to presume they seek a departure from the judgment they are appealing against.

In compliance with the Rules of this Court, parties exchanged their

briefs of argument. The 1st and 2nd Appellants’ joint brief dated November 15th 2019 and filed 18th November was settled by A. A. Airadion Esq. and was deemed as properly filed and served on June 8th 2020. The Respondent’s brief settled by B. Yusuf is dated January 3rd 2020 and was filed June 8th 2020.

At the hearing of the appeal on June 23rd 2020, learned Appellants’ Counsel, Mr. Mubarak Haruna lbrahim Esq. held brief for A.A. Airadion Esq. for the Appellants, adopted the Appellants’ joint brief and urged the Court to allow the appeal. Mr. A. F. Mshelia Esq. Senior State Counsel, for the Respondent, equally adopted the Respondent’s brief and urged that the appeal be dismissed. The appeal was thereafter reserved for judgment.

ISSUES SUBMITTED BY THE PARTIES
APPELLANTS’ ISSUES
I. Whether the arraignment, trial, conviction and sentence of the Appellants were not illegal by virtue of non-compliances (sic) with the process of arraignment? (Ground 1 of the Notices of Appeal).
II. Whether the Respondent proved the offences the Appellants were charged beyond reasonable doubt (Grounds 2, 3, 4, 5, 6 and 8 of the

1st Appellant’s Notice of Appeal and Ground 2, 3 and 4 of the 2nd Appellant’s Notice of Appeal).
III. Whether the learned trial Judge was right to have dismissed the Alibi when same was not investigated and considered alongside the evidence of PW3 to see which is more credible? (Ground 7 of the 1st Appellant’s Notice of Appeal).

The Respondent adopted the three (3) Issues submitted by the Appellants.
I adopt the three (3) issues by the Appellants satisfied that they will justly and fairly determine this appeal.

SUBMISSION ON BEHALF OF THE APPELLANTS’ THREE (3) ISSUES
Mr. Mubarak Haruna Ibrahim Esq., contended that from the Record of proceedings on page 9, each Count of the Charge was not separately read to each of the Appellant, not pleaded to separately and therefore, there was miscarriage of justice to them which fundamentally affected the entire proceedings, rendering same null and void. He cited in support the cases of ADENIJI V. THE STATE 2001 5 SCNJ 371, AKPIRI EWE V. THE STATE 1992 6 NWLR PT. 147 P. 155, AUDU MALA YERIMA & 2 ORS V. THE STATE 2010 14 NWLR PT. 1213 P. 25 and the Criminal Procedure Code

Sections 187 (1) and 212. That, it was mandatory that both Counts on the charge sheet be separately read out to the Appellants. Therefore, the Court lacked the jurisdiction to have entertained the Charge against the Appellants and cited in support the case of YAHAYA V. THE STATE 2002 3 NWLR PT. 74 P. 289. Further that, as each was not separately read out, it would be a mere speculation as to which of them the Appellants pleaded not guilty to. He submitted that, the Appellants were entitled to an order of discharge and retrial therefore and cited the cases of MOHAMMED V. THE STATE 2013 5 NWLR PT. 1347 P. 315 and UMARU V. THE STATE 2009 3 SCNJ 3 P. 40.

He submitted that the Respondent failed to establish its case as there was no proof beyond reasonable doubt even though they relied on the three (3) methods of securing conviction and cited in support the case of THE STATE V. IBRAHIM 2019 8 NWLR PT. 1674 P. 295. He argued that the testimonies of the three (3) Prosecution witnesses, PW1, PW2 and PW3 fell short of nailing the Appellants to the offences charged, particularly in terms of identification and in support cited the case of MUSA IKARIA V. THE STATE 2012

12 SCNJ P. 325. That, since the quality of evidence in respect of identification was poor, the Appellants should be acquitted and no conviction could be sustained thereupon. He submitted that, the difference in respect of the date when the offence was committed on the Appellants’ confessional statements, Exhibits G and H, as 28/7/2013 whereas the Charge carried 28/6/2013, is irreparable contradiction and the doubt cast should be resolved in favour of the Appellants. He cited in support the cases of STATE V. MUSA DANJUMA 1997 5 SCNJ P. 126 and IKUEPENIKAN V. THE STATE 2011 1 NWLR PT. 1229 P. 449. That, it was wrong for the Court to have suo motu resolved the difference as a slip. He submitted therefore that, Exhibits G and H ought not to have been admitted in support of the establishment of the guilt of the Appellants.

The learned Counsel argued that, the Court was wrong to have accepted the use of circumstantial evidence by the Respondent in respect of the PW1’s torch that was found in PW3’s house, the knife of PW1’s wife found behind the house of PW2 and the sum of N20,000 recovered from the wife of the 1st Appellant. That, the

evidence was not cogent and compellable enough to commit the Appellants. He submitted that, PW3 was a tainted witness as himself and the 1st Appellant had rivaled over the wife of the PW3.

On the defence of alibi by the 1st Appellant, the learned Counsel argued that, it was wrong for the Court not to have investigated it and cited the cases of OLAIYA V. THE STATE 2010 3 NWLR PT. 1181 P. 423 and NWATURUOCHA V. THE STATE 2011 SCNJ P. 148. In conclusion, he urged that the appeals of the Appellants be allowed, they be discharged and acquitted and the judgment of the Court below be set aside.

SUBMISSION ON BEHALF OF THE RESPONDENT
Mr. A. F. Mshelia Esq., the learned Counsel for the Respondent argued that, from the Record on page 9, the Appellants answered and pleaded to the charges and there was no illegal trial thereby and referred to Sections 187 (1) and 188 of the Criminal Procedure Code Laws of Borno State, Section 168 (1) of the Evidence Act, Section 36 (6)(a) of the 1999 Constitution as well as the cases of ADAMU V. STATE 2017 7 NWLR PT. 1565 p. 459, OLATUNBOSUN V. THE STATE 2014 10 NSCC 459, IBRAHIM V. THE STATE 2013 56 NSCQR PT. 1 P. 629 and

NWACHUKWU V. STATE 2002 11 NSCQR 663 in support. That, there was no miscarriage of justice, nor were the Appellants misled or embarrassed. He submitted that, the cases cited by the Appellants’ Counsel were not helpful to their position and did not apply in the instant appeal.

He argued that, the evidence of the PW3 was not contradicted, rather corroborated by the testimonies of PW4 and PW5 as well as Exhibits G and H. That, said Exhibits were admitted at the Court below without any objection and therefore the objection being raised before this Court was rather late in the day and cited the case of EMEKA V. STATE 2019 8 NWLR PT. 1673 P. 159. With regard to the difference in the date of commission of the offence, he asserted that from PW1, PW2, PW3, PW4, PW5, DW1 and DW2 and Exhibits A and B, the same date was stated as 28/06/2013. That, it was a mix up which is a mere slip and with the words “on or about” in the Charge, the contradiction was taken care of and the Appellants were not misled in any way. He cited the cases of AKPAN V. STATE 2008 7 MJSC 77, EFFIONG V. THE STATE 1998 8 NWLR PT. 562 P. 352, and OLATUNBOSUN V. STATE supra.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the defence of alibi by the 1st Appellant, he submitted that, the evidence at the trial fixed the 1st Appellant at the scene of crime and therefore demolished the alibi and cited in support the case of ANYA V. STATE 2014 10 NSC P. 344. That, both PW2 and PW3 identified the 1st Appellant at their respective compounds and an identification parade was unnecessary and cited in support the case of ADEKOYA V. STATE 2017 7 NWLR PT. 1565 P. 343. In conclusion, the Court was urged to resolve all the issues against the Appellants and dismiss the appeal as it lacks merit.

THE COURT
I have very carefully read the gamut of the Record of this appeal together with afore stated processes filed by the Parties for and against herein and shall proceed thus:
The Appellants’ issues as adopted shall be considered one after the other and reproduced hereunder for ease of reference in that order.

ISSUE NO. 1
I. Whether the arraignment, trial, conviction and sentence of the Appellants were not illegal by virtue of Non-compliances (sic) with the process of arraignment?
The Appellants’ Counsel contended that, the omission to read out each

count to the Appellants separately and obtain separate plea to each count occasioned miscarriage of justice which fundamentally affected the entire proceedings and rendered it null and void.

On page 9 of the Record, the following transpired on 6/1/2014 at the Court below:
B. Yusuf: I pray that the charge be read to the accused persons.
Registrar: (Ibrahim Mustapha) read out and interpret (sic) the charge to both Accused persons from English language to Hausa language and vice-versa.
Court to both Accused persons: Do you understand the charge that has just been read out to you?
1st Accused persons (sic): I understand the charge.
2nd Accused persons (sic): I also understand the charge.
Court to both Accused persons: What is your plea?
1st Accused persons (sic): I plead not guilty,
2nd Accused persons (Sic): The allegation is false.
B. Yusuf: In view of the plea of the Accused persons we ask for a date to call evidence.
Z. M. Umar: No objection.
Court: Matter adjourned to the 21st day of January, 2014 for hearing. Accused persons to be remanded in the prison custody.

The relevant law in respect of

the procedure at the trial is the Criminal Procedure Code and Section 187 (1) thereof provides as follows:
Section 187 (1)
When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not of the offence or offences charged.
On arraignment and taking of plea, the law is trite and as clearly put thus by the apex Court in the case of OGUNYE V. STATE 1999 5 NWLR PT. 604 548 as well as by this Court in many cases:
“For there to be a valid arraignment of an accused the following steps:
(a) The accused person must be placed before the Court unfettered unless the Court shall see cause otherwise to order.
(b) The charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court and
(c) The accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the

Court is satisfied that he has in fact not been duly served therewith.”
It is necessary to mention that the foregoing requirements are mandatory and not directory and therefore must be adhered to as failure so to do will render the trial incurably defective. See the cases of OKO OGAR ADAMA V. THE STATE 2017 LPELR SC 69/2014, EYISI & ORS V. THE STATE 2000 4 NSCQR 60 and GOLDEN DIBIE V. STATE 2007 3 SC PT. 176.

Given the proceeding at the Court below as stated above, in my considered view and humbly, one fails to see how there was violation of the quoted provision of the relevant law and the occasioning of any miscarriage of justice on the Appellants. Indeed, a single question was asked by the Court whether or not they understood the charge. One finds it satisfactory that the Appellants answered separately and one after the other, not one for both, but one after the other that each understood the charge. Similarly for the plea, after the single question, each of them stated the plea of not guilty for himself. From the clear responses of the 1st and 2nd Appellants, there is no doubt that each of them understood and pleaded separately to the

Charge. The further contention of the learned Counsel that, it will be a mere speculation from the face of the Record which of the counts was read to them, in my humble view would tend towards questioning whether or not any count at all was read to the Appellants, which is an entirely different issue. Further in my view, I do not think that the failure to repeat the Charge on page 9 of the Record should vitiate the whole proceedings, as the Record clearly states that the Charge was read out in Compliance with the law and explained to the Appellants as contained on page 9 of the Record.

In the light of the foregoing, one is unable to agree with the submission of the learned Appellants’ Counsel. Consequently, issue no. 1 is resolved against the Appellants.

ISSUE NO. 2
Whether the Respondent proved the offences the Appellants were charged beyond reasonable doubt.
In our adversarial criminal justice system, the burden of proof of the guilt of the accused, in other words, the establishment of the commission of the offence by the party accused is by proof beyond reasonable doubt. In the case of MUFUTAU BAKARE V. THE STATE 1987 LPELR-714 SC,

Oputa JSC explained what proof beyond reasonable doubt entails as follows:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent In our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice proof beyond reasonable doubt means what it says it does not admit of a high degree of cogency, consistent with an equally high degree of probability.”
See further, the cases of JOSHUA ALONGE V. IGP 1959 1 FSC 203, R V. OLEDINA & 6 ORS 6 WACA 202, AHMED V. THE STATE 2003 3 ACLR 145 177, ANAEKWE V. THE STATE 1998 ACCLR 426 and OBIAKOR V. THE STATE 2002 6 SCNJ 193 and Section 137 (1) of the Evidence Act.

In resolving this issue, I shall consider the findings of the trial Court as issues of facts are pre-eminently those of the trial Court. The appellate Court must not substitute its own views especially on issue of credibility of witnesses. See

the cases of GABRIEL OKUNZUA V. MRS E. B. AMOSU 1992 LPELR SC 178/1990, WILLIAMS V. JOHNSON 1937 2 WACA 253 and OGBERO EGRI V. EDEBO UKPERI 1974 NMLR 22.

reasonable doubt.
See the cases of AFOLALU V.THE STATE 2010 16 NWLR PT. 1220 554, ARUNA V. THE STATE 1990 6 NWLR PT. 155 125, ANI V. STATE 2003 11 NWLR PT. 89 142, NWACHUKWU V. THE STATE 1985 1 NWLR PT. 11 218 and BOZIN V. STATE 1985 LPELR-799 SC.

The Court found as follows on page 52 of the Record:
“A careful perusal of the evidence of PW1, PW2, PW3 and PW5 vis-a-vis Exhibit D as well as the confessional statements of the two accused persons (Exhibits G and H) leaves no one in doubt that there were robberies at the houses of PW1 and PW3. The 1st and 2nd accused persons confessed in Exhibits G and H respectively that they both took part in the robbery at the house of PW3.”

From the Record, the PW1 who testified that, while he was sleeping in his house, three (3) persons armed with knives and sticks demanded for money and took away a total sum of N27,900 from his house was not cross-examined by the defence Counsel (see page 11 of the Record) and so the Court held and correctly thus in that regard on page 53:
“The defence counsel elected not to cross-examine PW1 and his evidence still stands tall and unshaken.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Court found “unchallenged” and “uncontradicted” the testimony of the PW3 that he was stabbed by the 1st Appellant with a knife in the course of the robbery. Evidence in that respect was unchallenged and therefore supported the case of the Respondent against the Appellants. The Court found it good and credible and ascribed probative value to it and rightly relied on it.

On page 53 of the Record, the Court found and held as follows:
“The first accused person confessed in Exhibit G that he and the second accused person armed themselves with knives. Although the 2nd accused person indicated in Exhibit H that he only stood outside the room, this does not in any way exculpate him. Exhibits G and H the confessional

statements of the accused persons, explained the modus operandi for the robbery as well as the role each accused persons played.”

On the third ingredient of the offence, the Court on page 54 of the Record found thus:
“…both accused persons confessed in Exhibits G and H that they took part in robbery and were armed at the time.”

The Court, apart from the statements which the accused tried to retract after they had been admitted and rightly so, found other factors in collaboration with the Exhibits G and H, the confessional statements and stated as follows on pages 54-55 of the Record:
“In applying the above factors in the consideration of the statements, it is crystal clear that there are other evidence aside the statement to show that it is true. The testimony of the PW3 that he was robbed corroborates the confessional statements. Further Exhibits C (the money) and D (the knives) are evidence outside the confessional statements which makes it probable that the confession was true. The evidence of PW6 Alhaji Akilayel Saidu and Exhibit 1 showing that PW3 was stabbed are consistent with other facts moreso that PW6 was

never discredited on this point.
I hereby find that the accused persons made Exhibits G and H. I also find that the statements are direct, positive and unequivocal to warrant this Court to act upon it in order to draw a reasonable inference there from. The retraction by the accused persons of their confessional statement (sic) in their evidence on oath during trial does not adversely affect the situation once the Court is satisfied of its truth. The law is that this Court can rely on the confessional statements to ground a conviction. I hold that the prosecution has proved beyond reasonable doubt the third ingredient of the offence of armed robbery.”

The position of the law with respect to retraction of confessional statements and whether or not any probative value should be given was correctly stated by the Court. Exhibits G and H were both admitted without any objection from the Appellants on pages 16- 19 of the Record through PW5, the Special Anti-Robbery Squad, investigation Officer. It is settled law that, mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject its

admissibility in evidence when properly tendered. See the cases ofAKWUOBI V. THE STATE 2016 LPELR-SC 379/2011, OKWESI V. STATE 1995 NWLR 119, EZENGE V. THE STATE 1999 14 NWLR PT. 637 1 and MADJEMU V. THE STATE 2001 5 SCNJ. However, whereas herein the Appellants’ statements, Exhibits G and H were retracted in Court, there is need for independent corroboration however slight, which from the foregoing paragraphs, the Court below properly considered. See the cases of SALAWU V. STATE 1971 NMLR 249 and AKINFE V. STATE 1988 3 NWLR PT. 85 729.
From the Record, one finds that, the Court on pages 54-55 of the Record, applied and correctly, the guide to test the veracity of the confessional statements, Exhibits G and H by the Appellants. The relevant questions for the test were whether there was:
a. Anything outside the statements to show they were true
b. Were they corroborated
c. Are the facts stated therein true as far as can be tested
d. Did the Appellants have an opportunity of committing the offence
e. Are the confessions possible and
f. Are the confessions consistent with other facts which have been ascertained and proved<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See the cases of KANU V. R 1952 14 WACA 30, R V. OBIASA 1962 2 SCNLR 402, DAWA V. STATE 1980 8-11 SC 236, OJEGELE V. STATE 1988 1 NWLR PT. 71 414, OGOALA V. STATE 1991 2 NWLR PT. 175 509 and EJINIMA V. STATE 1991 6 NWLR PT. 200. Once a confessional statement passes the test, it can support a conviction as was found and held by the Court.

I have painstakingly gone through the Record before this Court and particularly Exhibits G and H and I am able to agree with the findings of the Court below.

The Court equally found against the Appellants based on the testimony of PW5 which was unchallenged. See pages 16-20 particularly page 20 of the Record. One finds that, the cross-examination of PW5 on page 20 of the Record did no damage to the totality of her testimony and therefore one agrees with the position of the Court on page 57 of the Record that, the testimony of the PW5 remained unchallenged. Further, the Court linked the articles belonging to PW1 found after the robbery incident in the houses of the PW2 and PW3, the torch, and his wife’s knife respectively. The testimony of the PW2 was not challenged as found by the Court to the effect that, he

recognized the 2nd Appellant when he flashed his torchlight and that the men left a knife behind his house. See pages 55-56 of the Record. The finding of the Court on page 52 of the Record that, the 1st Appellant was identified by the PW3 while the 2nd Appellant was identified by the PW2 supported the offence of conspiracy and corroborated Exhibits G and H. And on page 56 of the Record it held correctly thus, in my view and humbly:
“It is crystal clear from the testimony of PW1, PW2, PW3 and PW4 that the accused persons are linked to the robbery that took place at PW1’s house. I hold that both accused persons have been incriminated and linked to the robberies and I so hold.”

necessary to prove that the conspirators, like those who murdered Julius Ceasar were seen together coming out of the same place at the same time and indeed conspirators need not known each other…
The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them…”
Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. See the cases of SILAS V. THE STATE 2009 17 NWLR PT. 1169 33, IKEMSON V. THE STATE supra, BALOGUN V. A-G OGUN STATE 2002 2 SCNJ 196 and NDOZIE V. STATE 2016 LPELR 26067 SC.
Ingredients for the offence of conspiracy are the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the accused persons had knowledge of its unlawfulness.

See the case of CLARK V. THE STATE 1986 4 NWLR PT. 35 381.

The law in my view and humbly is made clear as to when a person is deemed or can be deemed to be part of an armed robbery gang, to have committed armed robbery as the Court below correctly found in respect of the Appellants was simply put in the case of OKPULOR V. THE STATE 1990 LPELR-2523 SC where the apex Court stated thus:
“In law, it matters not that the appellant does not carry weapon, even though in this case he was found to have carried a gun. Once it is established that the appellant was among the robbers not as a casual onlooker, but a full participant and his accomplices now at large not only carried firearms but actually engaged the police who challenged them in cross fire, the appellant was guilty of the offence of armed robbery.”
Further in the case of IKEMSON V. THE STATE 1989 3 NWLR PT. 110 455, the law was explained to the effect that, a person will still be found guilty of armed robbery if he is present at the locus criminis and where there is evidence that he was in concert with the others at large to violently commit robbery even if only one person was armed

with the offensive weapon, he would be found guilty of the offence. What is critical here and essential in order to determine whether or not the 2nd Appellant committed the offence/participated in the offence is the principle of common object, the intention to violently rob and the execution of such intention which was found correctly to be in the affirmative by the Court in respect of the 2nd Appellant. See the case of OKOSUN & ORS V. A-G BENDEL STATE 1985 3 NWLR PT. 12 283.

From the foregoing, the submission of the Appellants’ learned Counsel is therefore of no moment, that, the PW1 and PW3 identification of the Appellants as perpetrators of the crimes was very weak and unrealistic. And further that, the mention of Sani by the Pw3 did not pin the 1st Appellant as the Sani and could be any Sani. Equally, the statement of the 2nd Appellant that, he was at the door to give cover (see page 52 of the Record) and the learned Counsel’s contention that, the 2nd Appellant’s role was not clearly stated by the PW2, as he was identified only as the person who went to his door on the day of the incident and as he was not charged with any

offence with respect to the PW2, cannot stand given the foregoing instructive judicial description of one who participated in an armed robbery.

Upon very careful study of the Record and given the position of the law, one agrees with the reasoning and finding of the Court on the difference in the month the offences were said to have been committed, June and not July and the date stated in Exhibits G and H. It stated thus:
“While PW1 to PW4 gave the date as 28th June 2013, Exhibits G and H gave the date as 28th July 2013. The correct date is 28th June 2013 as stated by PW1 to PW4. It is worthy to note that Exhibits G and H were made on 15th July 2013 which is 13 days before 28th July 2013. How can that happen? Certainly it’s a slip. Is that human slip enough to exonerate the accused persons? Does the slip in date really kill or destroy the actus reus of the accused persons. Is that not really pursuing the shadow and leaving the substance of the act of robbery. Exhibits G and H were made in furtherance of Exhibits E and F respectively where both accused persons specifically referred to 28th June 2013. Exhibits E and G as well as Exhibits F

and H are therefore tied together … I am therefore in agreement with the prosecution counsel that the discrepancies in date is a mere slip.”

Exhibits E and F were statements earlier made by the Appellants before the matter was transferred to Anti-Robbery Squad and the date therein stated as 28th June 2013. One therefore finds as proper the tying of the two sets of statements, Exhibits E and G and F and H together since they were on the same incident and made by the same persons, the Appellants. It was obvious that there was no miscarriage of justice to the Appellants nor were they misled in any way by the said difference.

It is trite that, for any contradiction to be consequential, such that will affect or vitiate a proceeding, it must be material as to have occasioned miscarriage of justice. That of the instant appeal cannot be held to be fatal to the judgment. See the cases of OKPOKPO V. UKO 1997 11 NWLR PT. 527 94 and QUEEN V. EKANEM 1960 5 FSC 14.
Flowing from the foregoing, Issue no. 2 is also resolved against the Appellants.

ISSUE NO. 3
Whether the learned trial Judge was right to have dismissed the Alibi when same was

not investigated and considered alongside the evidence of PW3 to see which Is more credible?

On the defence of alibi, the learned Appellants’ Counsel contended that, the defence made by the 1st Appellant was not investigated. The position of the trial Court in that regard in my considered view and humbly, is correct. It held that the evidence of the Respondent’s witnesses PW2, PW3 and PW5, specifically and unequivocally pinned the Appellants to the scene of the crime and therefore, the alibi would not avail the 1st Appellant.

For the defence of alibi, the standard of proof is much lower than proof beyond reasonable doubt, it is that of preponderance of evidence or balance of probability. See the cases of OKPUTU OBIODE & ORS V. THE STATE SC 1970 1 ALL NLR 35 and GACHI & ORS V. THE STATE 1965 NMLR 338. When the defence is made it must be investigated even if incredible. However, where it is clearly without foundation, the prosecution is not duty bound to present witnesses to disprove it where there are stronger facts in evidence as it was found in the instant appeal by the Court, which pointed to the presence of the 1st Appellant at

the locus criminis. In consequence, the alibi was found unreliable.
If that be the position, Issue no. 3 is also resolved against the Appellants.

In the result, this appeal cannot be allowed as it lacks merit and is hereby accordingly dismissed. The judgment of the Court below delivered by Hon. Justice F. Umaru on June 10th 2014 is hereby consequently affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in advance the Judgment of the Court just delivered by my learned brother, Williams Dawodu, JCA, I agree with his reasoning and conclusion. ln furtherance of my agreement, I will add a few words.

On the 1st issue for determination in respect of whether the trial was illegal on account of the process of arraignment carried out at the trial Court, by the use of the word “shall” in Section 187 of the Criminal Procedure Code, the following procedure ought to be strictly followed:
(1) The charge must first be read out end explained to the accused person in open Court, thereafter, he shall be asked whether he is guilty or not of the offence or offences charged.
(2) Where the accused person pleads guilty, his plea

must be recorded and may thereupon and at the discretion of the Judge, be convicted on his confession provided the offence charged is not punishable with death.
From page 9 the record of the trial Court, it is observable that this process of arraignment was scrupulously followed by the learned trial Judge. It is evident that from the responses of the Appellants, they understood the meaning of the two count charge and also the effect of their pleas. The charge was read and explained to the understanding of the accused persons; in their own words, they variously pleaded not guilty and that the allegations in the charge were false. Based on their not guilty pleas, the learned trial Judge rightly adjourned the case for hearing wherein the Respondent amassed evidence in proof of the charge.
From the above, I am of the view that the trial Court could not have acted more correctly. He was on a sound footing. It is on record that the charge was read in English and interpreted to the accused persons now Appellants in Hausa, a language which they understood. This is manifest from the way and manner they responded to the questions put to them by the trial

Judge. It is a trite principle of practice that the Court and parties are bound by the Record of the Court. There has been no challenge to the correctness or veracity of the compiled and transmitted Record of Appeal. Therefore it is apparent, as rightly found in the lead Judgment of this Court, that the learned trial Judge painstakingly complied with the proper procedure or requirements in respect of the arraignment of accused persons under Section 187(1) and (2) of the Criminal Procedure Code. See Offor V. State (2012) LPELR-19658(SC) 20-21, C, per Ogunbiyi, 35C; Torri V. National Park Service of Nigeria (2011) LPELR-8142(SC) 27-28, F-D, per Rhodes-Vivour, JSC; & Mozie V. State (2012) LPELR-14353(CA) 18-20, F, per Sankey, JCA.
In the final analysis, I am of the firm view that in view of the decision in Offor V. State (supra) where Ogunbiyi, JSC discussed the requirements of a proper arraignment under Section 187 of the Criminal Procedure Code, this Appeal must fail on this ground. In this respect therefore, I fully endorse the views of Williams-Dawodu, JCA in her leading Judgment in dismissing the Appeal. Accordingly, I also dismiss the Appeal and

affirm the conviction and sentence passed on the Appellants by the trial Court.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the judgernent delivered by my learned brother E. O. Williams-Dawodu, JCA. The Judgment of his Lordship presents a very painstaking analysis of the evidence before the trial Court, and the correct statement of the law on the vital issues that were formulated for determination.

Therefore, I adopt the reasoning and conclusion reached in the Judgment. Perhaps, to reinforce my satisfaction in the soundness of the conclusion reached in the Judgment, I will make a few comments on the contention of the Appellant’s Counsel faulting the conviction of the appellants on the ground that the defence of alibi raised by the appellants was not investigated by the Respondent. The learned trial Judge was on solid ground in refusing to give that defence a second thought because of the solid facts on record.

The 1st Appellant was identified by PW3 while the 2nd Appellant was identified by PW2. Their evidence was not discredited under cross- examination, apart from the fact that the said evidence corroborates

Exhibits G and H (the Appellants’ Confessional Statements which they unsuccessfully tried to retract because the trial Court correctly applied the tests mandated in law to be applied where an accused person resiles from his Confessional Statement). Applying those tests, the trial Court correctly found evidence outside the Confessional Statements which tended to show that the confessions were indeed made by the appellants.

The law is settled that where there is sufficient evidence which the trial Court finds to be credible and believes fixing the accused person to the crime alleged, failure to investigate the alibi set by an accused person will not be fatal to the prosecution’s case.
In the case of Etim Etim Udo V. The State (2018) LPELR-43707 (SC), the apex Court held:
“For emphasis, it has to be said that it is not in all cases where the police fails to investigate an alibi such as the case in hand where the alibi was raised timeously that such failure would be taken to have a fatal effect in the case of the prosecution. This is so when the evidence proffered by the prosecution is such that the accused was well at the scene of crime at the

material time. In the case at hand the evidence of PW1 was credible and strong to destroy the alibi raised by the Appellant and so the fact that the alibi was not investigated is of no moment. See Ayan V. The State (2013) 55 NSCQR 228 – 229, Gachi V. The State (1965) NWLR 333, Odika V. the State (1977) 2 SC 21, Yanor V. State (1965) All NLR-193, Salami V. State (1988) 3 NWLR (Pt. 85) 670 at 677.” Per Peter Odili JSC (pp. 18 – 20, paras E – D). See also Gabriel Ogogovie V. The State (2016) LPELR-40501 (SC) per Sanusi, JSC (p. 59, paras D – F).

Having said this, I find no merit in this appeal. It is accordingly dismissed, and in consequence, the Judgment of the lower Court delivered on 10/06/2014 is hereby affirmed.

Appearances:

MUBARAK HARUNA IBRAHIM HOLDING BRIEF FOR A. A. AIRADION ESQ. For Appellant(s)

F. MSHELIA SSC, MINISTRY OF JUSTICE BORNO STATE For Respondent(s)