IZUAGBE v. STATE (2022)

IZUAGBE v. STATE

(2022)LCN/16924(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, July 18, 2022

CA/IL/80C/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ABDULKAREEM IBRAHIM IZUAGBE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The law is trite that for the prosecution to secure a conviction for an offence of armed robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, the following ingredients of the offence must be proved beyond reasonable doubt by cogent and credible evidence:
(1) That there was a robbery or series of robberies.
(2) That the robbery or each of the robberies was an armed robbery;
(3) That the accused participated in the armed robbery or robberies. See Ikemson v State (1989) 3 NWLR (Pt.110) 455, Alabi v State (1993) 7 NWLR (Pt.307) 511 and Bello v State (2007) 10 NWLR (Pt.1043) 564.
It is elementary that to prove the forgoing recourse may be had to confessional statement of the accused, circumstantial evidence and/or direct evidence of an eyewitness. See Orode v State 2018 LPELR 43788.
PER AMADI, J.C.A.

DEFINITION OF A CONFESSION

Section 28 of the Evidence Act, 2011 defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting inference that he committed the crime. A confession must be direct, clear, unambiguous and positive. See Azabada v The State (2014) LPELR-23017 (SC) at 33 (A-C), Nkie v FRN (2014) LPELR – 22877 (SC) at 29 (D-F), Salawu v State (2011) LPELR – 9351 (SC) at 36 (E-G).
In Osuagwu v The State (2013) LPELR-19823 (SC) at 26 (B-F) the Supreme Court stated the nature of a confessional statement as follows:
“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. See Igbinovia v. State 1981 2 SC p. 5 Yusufu v. The State 1976 6 SC p.167. A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgment of guilt. A confession must either admit the elements of the offence or all the facts which constitute the offence. Once the Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an appellate Court. See R V. Sykes 8 C.A.R p. 23, R. v. Ajayi Onokoro 7 WACA p.146.”
PER AMADI, J.C.A.

THE DEFINITION OF ROBBERY

In Ibrahim v The State (2013) LPELR – 21883 (SC) AT 41 (D-E), the Supreme Court per Ariwoola JSC held that:
“Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.”
Armed robbery is a crime committed on a person. The evidence on record established the fact that the armed robbery was committed against the PW2 which established the 1st and 2nd ingredients of the offence.
PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Kwara State High Court, sitting at Ilorin, (hereinafter referred to as the trial Court) delivered on 1st day of April, 2021 by Hon. Justice T. S. Umar, in Suit No. KWS/43C/2017.

The Appellant herein was the 1st Accused Person at the trial Court, while the Respondent was the Complainant.

The three counts charge against the Appellant and four other accused persons charged along with him are adumbrated as follows;
COUNT ONE
That you ABDULKAREEM IBRAHIM IZUGBE a.k.a KEKE and MOHAMMED OLADOSUN KABIRU, ALABI OLUWASIJI, ISRAEL OLUDE and OLAJIDE KAZEEM MUSTAPHA on or about the 18/04/2013, at S.O.T Filling station along Taoheed Road, Ilorin, Kwara State within the jurisdiction of this Honorable Court conspired to commit an illegal act to wit; rob one Ganiyat Aroyehun of her Honda Accord Car with reg. no. ABUJA FH161 ABJ, valued N2,000,000.00, cash sum of N550,000.00 and other valuables and you thereby committed an offence contrary to Section 6 (b) of the Robbery and Firearms Act (Special Provision) Act, CAP R11, Laws of the Federation of Nigeria, 2004.

COUNT TWO
That you ABDULKAREEM IBRAHIM IZUGBE a.k.a KEKE and MOHAMMED OLADOSUN KABIRU, ALABI OLUWASIJI, ISRAEL OLUDE and OLAJIDE KAZEEM MUSTAPHA on or about the 18/04/2013, at S.O.T Filling station along Taoheed Road, Ilorin, Kwara State within the jurisdiction of this Honorable Court while armed with guns attacked and robbed one Ganiyat Aroyehun of her Honda Accord Car with reg. no. ABUJA FH161 ABJ, valued N2,000,000.00, cash sum of N550, 000.00 and other valuables and you thereby committed an offence contrary to Section 1 (2) of the Robbery and Firearms Act (Special Provision) Act, CAP R11 Laws of the Federation of Nigeria, 2004.
COUNT THREE
That you ABDULKAREEM IBRAHIM IZUGBE a.k.a KEKE on or about 20/07/2016, at a hideout in Ganmo, Kwara State within the jurisdiction of this Honorable Court conspired to commit an illegal act to wit; was found to be in illegal possession of firearms and you thereby committed an offence contrary to Section 3 (1) of the Robbery and Firearms Act (Special Provision) Act, CAP R11 Laws of the Federation of Nigeria, 2004.

​The Appellant pleaded not guilty to the three counts charge. To prove its case the prosecution called four (4) witnesses and tendered some Exhibits, while the Appellant/1st accused person testify in his defence. In its considered judgment, the trial Court convicted and sentenced the 1st and 2nd accused persons.

In convicting the Appellant and the 2nd accused person, the trial Court said inter alia thus;
“The 1st and 2nd defendants are convicted for offences of Criminal conspiracy and Robbery contrary to Section 6 (b) and Section 1 (1) of the Robbery and Firearms Act, Cap R11 LFN, 2004 and I hereby convict them accordingly. I also find that the prosecution has proved the offence of being in unlawful possession of firearms punishable under Section 3 (1) of the Robbery and Firearms Act, R11 LFN, 2004 against the 1st defendant. I find there is no evidence of criminal conspiracy and Armed Robbery proved against the 3rd and 4th defendants in this case, accordingly, the 3rd and 4th defendants are discharged.”

​Aggrieved by the decision of the lower Court, the Appellant filed a notice of appeal dated 15th July, 2021 on 16/7/2021. The said notice of appeal as can be seen at pages 170 to 175 of the printed record of appeal contained five (5) grounds of appeal.

Parties to this appeal exchanged their respective briefs in accordance with the rules of the Court. The Appellant’s brief of argument prepared by Abiodun Dada Esq. was dated 16th September, 2021 and filed on the same date. Learned counsel for the Appellant adopted the said brief as the Appellant’s argument in this appeal and urged the Court to allow this appeal, discharge and acquit the Appellant.

The Respondent’s brief of argument prepared by Yetunde Ajayi Esq. (Senior State Counsel) was dated 14th October, 2021 and filed on 22/12/2021. Learned counsel to the Respondent adopted the said brief as the Respondent’s argument in this appeal and urged the Court to dismiss the appeal as lacking in merit and to affirm the conviction and sentence of the Appellant made by the trial Court.

​The Appellant in his brief of argument distilled two issues from the grounds of appeal contained in his notice of appeal and same are adumbrated as follows;
1. Whether the trial Court was right to have admitted and attached weight to (Exhibit P6) the purported Statement of the Appellant in his judgment and relying on same in convicting and sentencing the Appellant for the offences charged.(Grounds 4 and 5)
2. Whether from the totality of the admissible evidence, the lower Court was right when it held that the Appellant participated in the alleged robbery and convicted/sentenced him for the alleged offences of Criminal Conspiracy, Robbery and Illegal possession of firearms. (Grounds 1, 2 and 3)

The Respondent on its part adopted the Appellant’s two issues as the issue for determination in this appeal. Therefore this appeal shall be determined on the two issues formulated by the Appellant.

​A summary of the arguments in respect of these issues are as follows:
The Appellant’s counsel submitted that under our adversarial system of adjudication, in criminal cases, the burden on the prosecution to prove the offence against an accused person does not shift. That it is not the duty of the Accused Person/the Appellant to prove his innocence. He refers the Court to Section 36 (5) of the 1999 Constitution (as amended) and Section 136 of the Evidence Act 2011. He also referred to the case of Shehu v State (2010) 8 NWLR (Pt. 1195) 112 AT 137

The learned counsel further submitted that the learned trial Judge did not exercise due caution in convicting and sentencing the Appellant of the offence charged having regards to the nature, contents and circumstances surrounding the taking of the purported confessional statement. That the trial Court relied solely on the purported extra-judicial confessional statement of the Appellant (Exhibit P6) in arriving at its Judgment with no regard/consideration whatsoever to the fact that the said statement was not made in accordance with the requirement of the law.

He argued that the statement was not made voluntarily by the Appellant and that these facts were made known and demonstrated at the trial before the lower Court which the lower Court failed to consider and evaluate in line with its duty.

He submitted that there are established guiding principles in assessing the quality of confessional statement, whether retracted or not. He referred to the cases of Ayedun v State (2014) 10 NCC 527 AT 533 and Akindipe v State (2016) Vol. 7 M. J. S. C. (Pt. II) 65 AT 71.

​The learned counsel submitted further, that the Court is under an obligation to find evidence before the Court which in material particular corroborates the confessional statement before the Court can convict on it.

He argued that in the instant case, there was no corroborating evidence/nothing outside the purported confession at all to be relied upon by the trial Court to safely convict the Appellant, and if there was any, same is neither credible nor did it link the Appellant with the commission of the offences charged. He urged the Court to so hold and set aside the decision of the trial Court.

He further submitted that a Judge faced with a situation where the purported confessional statement of the Appellant was made involuntarily as in the case at hand, the Court ought to be guided by the aforementioned test/principles of law. The learned counsel argued that the trial Court was not so guided and was therefore wrong when it convicted the Appellant for the offences of criminal conspiracy, robbery and illegal possession of firearms. He commended the Court on the case of Galadima v State (2012) 52 NSCQR 543.

​He further submitted also, that it was highly unsafe for the learned trial Judge to have convicted the Appellant without due consideration of his defense. He referred the Court to the case of Fatai Olayinka v State (N.C.C.) 2 (2003) 505 AT 510

He argued that the learned trial Judge erred when he admitted and relied on and attached weight to Exhibit P6 i.e. the purported confessional statement of the Appellant which the Appellant strongly maintained that was made involuntarily and evidence were led/demonstrated confirming that Exhibit P6 was not made voluntarily. He made reference to pages 122-123 of the Record of Appeal.

The learned counsel insisted that Courts have been enjoined to have some evidence outside the confession which will make it probable that the confession was true. He referred to the case of Igba v State (2018) 6 NWLR (Pt. 1614) 44 AT 58.

He re-asserted that the onus of proof in criminal matters rest on the prosecution and same also extends to trial within trial to prove the voluntariness of a confessional statement. On this principle the learned counsel relied on the case of Emeka v State (2014) ALL FWLR (Pt. 756) 585 AT 589 and Eke v State (2011) 3 NWLR (235) 589 AT 602, Paras D-C.

He submitted further, that throughout the trial at the trial within trial, the Respondent was unable to discharge the burden of proof as required by law in the same line, failed to show or demonstrate through her witness PW3 (Mr. Monday Ogidiagba) that the Appellant voluntarily made the alleged confessional statement.

He urged the Court to resolve these issues in favour of the Appellant against the Respondent by holding that the trial Court erred when it attached weight to the Appellant’s purported confessional statement (Exhibit P6) and relied on same in convicting and sentencing the Appellant for the offences charged without any other or further corroborative evidence.

Learned counsel for the Respondent, on the other hand, urged the Court to resolve this issue in the affirmative.

He submitted that Exhibit P6 which was made by the Appellant was admitted as evidence after trial within trial by the learned trial Judge. He referred the Court to page 163 of the Record of Appeal.

​He submitted further that exhibit P6, the extra-judicial statement of the Appellant was cogent, direct and unequivocal on the fact that the Appellant along with his cohorts committed the crimes for which they were convicted.

He added that Exhibit P6 contains the signature and Rank of the officer who endorsed the confessional statement and the said officer was also called as PW4 in the trial within trial. He referred the Court to Pages 119-121 of the record of Appeal.

He contended that the evidence led by the prosecution in the trial within trial that led to the admission of Exhibit P6 as direct, cogent and compelling as to leave no room for any maneuver from the defence.

It is further submitted that having admitted Exhibit P6 via a well-considered ruling, the learned trial Judge acted properly and in order to have made use of same in his judgment. He referred the Court to the case of Gira v The State (1996) 4 SCNJ 94.

​He insisted that the argument of the Appellant that the confessional statement i.e Exhibit 6 was not adequately corroborated lacks any evidential basis because the evidence of PW2, the victim of the robbery not only fixed the Appellant at the scene of the crime but gave a concise view of the role played by the Appellant in the robbery and on his arrest, the Appellant made a confession adequately corroborating this unshaken evidence. He referred the Court to the cases of; Njoku v The State (2021) 6 NWLR (Pt. 1771) 157 at 180, paras B-G, 181 paras A-B., and Ifedayo v The State (2019) 3 NWLR (Pt. 1659) 265 at 271.

Learned counsel contended further that, the learned trial Judge adequately evaluated the evidence led by both parties in trial within trial before admitting Exhibit P6 and urged the Court to so hold.

In his reply brief the Appellant’s counsel submitted contrary to the contention/submission of the Respondent that, the fact that the purported confessional statement (Exhibit P6) was admitted by the learned trial Judge after conducting a trial within trial does not in any way whatsoever change the position of the law as held by the Supreme Court in the case of State v Ibrahim (2019) 9 NWLR (Pt. 1676) 137 AT 142.

Learned counsel also insisted that there is need for identification parade since the Appellant was not arrested at the scene of the alleged crime, the case of Njoku v The State (supra) referred to by the Respondent was clearly cited out of context and not applicable to the case at hand.

RESOLUTION
The law is trite that for the prosecution to secure a conviction for an offence of armed robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, the following ingredients of the offence must be proved beyond reasonable doubt by cogent and credible evidence:
(1) That there was a robbery or series of robberies.
(2) That the robbery or each of the robberies was an armed robbery;
(3) That the accused participated in the armed robbery or robberies. See Ikemson v State (1989) 3 NWLR (Pt.110) 455, Alabi v State (1993) 7 NWLR (Pt.307) 511 and Bello v State (2007) 10 NWLR (Pt.1043) 564.
It is elementary that to prove the forgoing recourse may be had to confessional statement of the accused, circumstantial evidence and/or direct evidence of an eyewitness. See Orode v State 2018 LPELR 43788.

In its bid to establish the ingredients of armed robbery, the prosecution called PW1, PW2 & PW3 and the Court relied heavily on exhibit P6 the alleged confessional statement of the Appellant and the evidence of PW1-PW3 to find the Appellant guilty of the offence of armed robbery.

Section 28 of the Evidence Act, 2011 defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting inference that he committed the crime. A confession must be direct, clear, unambiguous and positive. See Azabada v The State (2014) LPELR-23017 (SC) at 33 (A-C), Nkie v FRN (2014) LPELR – 22877 (SC) at 29 (D-F), Salawu v State (2011) LPELR – 9351 (SC) at 36 (E-G).
In Osuagwu v The State (2013) LPELR-19823 (SC) at 26 (B-F) the Supreme Court stated the nature of a confessional statement as follows:
“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. See Igbinovia v. State 1981 2 SC p. 5 Yusufu v. The State 1976 6 SC p.167. A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgment of guilt. A confession must either admit the elements of the offence or all the facts which constitute the offence. Once the Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an appellate Court. See R V. Sykes 8 C.A.R p. 23, R. v. Ajayi Onokoro 7 WACA p.146.”

In Ibrahim v The State (2013) LPELR – 21883 (SC) AT 41 (D-E), the Supreme Court per Ariwoola JSC held that:
“Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used.”
Armed robbery is a crime committed on a person. The evidence on record established the fact that the armed robbery was committed against the PW2 which established the 1st and 2nd ingredients of the offence.

In respect of the 3rd ingredient, the Appellant was not arrested at the scene of the crime. He was also not found with the snatched car. How then was he linked to this robbery?

​The PW3 Inspector Monday Ogidiagba the Investigating Police Officer (IPO) gave evidence that linked the Appellant to this robbery. His evidence is contained at page 115-116 of the record hereunder reproduced:-
On 18/4/2013, I was in the office when a distress call was received from one Mrs. Ganiyat Aroyehun that while she was at SOT filling station, Taoheed Road, she was attacked by a gang of arm robber and disposed of her Honda Accord Car with Registration No. FH 161 ABJ valued N2m some soon of money and other valuables at gun point.
Myself and other details was dispatched to the scene. On getting to the scene we met the victim laid down at the filing station. She pointed at Tanke Area where the suspect followed. They pursued them but could not get them. We came back and invite her to the station where I recorded her station and other vital witnesses, investigation command in the cause of investigation on the following months May, 2013, a similar armed robbery occurred at the same Basin Area where one Mrs Bimbo was robbed of her car. We also went to the scene. We went after the robbers. The 3rd and 4th accused were arrested at poly gate. The sum of N70,000 was recovered from each of them. They immediately confessed to have taken part on the armed robbery of May. They also confirmed 1st and 2nd defendants were part of armed robbery. The 3rd and 4th defendants led us to the house of 1st defendant at Oke Oyi. On getting there the 1st defendant opened the gate and opened fire on the detectives while the 4th defendant was escaping the 2nd defendant also rushed out of the same house.
The 2nd defendant was shot and arrested. The sum of N100,000 was recovered from him, It was in that case the 2nd and 3rd named 1st defendant as the running leader temporizing the whole of llorin. The 1st defendant was at large. The others were arraigned before the Court.
On 2014, we record information that the 1st defendant was arrested by SARS at Osogbo sophiscated arms were recovered from him.
I led a team of detection to Osogbo to take over the case while at Osogbo in RARS office, the 1st defendant told me that he led to the rubbery of April and May at SOT Filing Station. Several letters were written to release the 1st defendant to no avail until 20th of July, 2016 when we received an information that the 1st defendant was sighted at criminal hid out at Ganmo area. A team of detective and vigilantes moved to the area and he was arrested.
Upon the arrest of 1st defendant, a barrettal pistol with a live ammunition was recovered from him. He was brought to SCID for further investigation. On 8/8/2016, he was brought from the cell to the statement room where I confronted him in respect of arm robbery cases. Cautionary words were administered to him which he said he understood and signed. He ……. his statement in English language which was signed by me. After recording it, I read it to him which he said it was correct. He signed as the maker while I signed as the recorder. He confessed to May arm robbery operation he led the one reported by Ganiyat Oloyin PW1.
We reproduced them from prison custody where I asked them. They made statement but denied even following the 1st defendant to SOT filling station to rob anybody.

From the evidence of this witness, there are two versions of the linking of the Appellant to the robbery incident in this matter.

​By the first version “the following month May, 2013, a similar armed robbery occurred at the same Basin Area where one Mrs. Bimbo was robbed of her car. We also went to the scene.
We were after the robbers. The 3rd and 4th accused were arrested at Poly gate …… They immediately confessed to have taken part on the armed robbery of May. They also confirmed 1st and 2nd defendants were part of armed robbery. (Underlining mine for emphasis)

It is very instructive that by this first version, by the 3rd and 4th defendants; their confirmation was that the Appellant was part of their robbery gang and not that he participated in the car snatched in this case.

The second version is his further evidence thus “…it was in that case the 2nd and 3rd named 1st defendant as the running leader temporizing the whole of Ilorin. The 1st defendant was at large. The others were arraigned before the Court”.

I believe, that the phrase “the running leader temporizing the whole of Ilorin” is the ‘ringleader terrorizing the whole of Ilorin ‘. The case referred to “…it was in that case” is the robbery in May. Again, there is no direct link or reference to the robbery or car snatching that gave rise to this appeal.

​The 2nd, 3rd and 4th defendants’ evidence are contained at pages 121 to 128, they denied knowing the Appellant here until they were brought together by the police. The said confession of the 3rd and 4th defendants wherein they mentioned the 1st defendant was not produced and the 3rd and 4th defendants were not confronted under cross-examination with that fact.

Above all, the trial Court discharged and acquitted the said 3rd and 4th Defendants of the charges in this case. Therefore the claim that the 3rd and 4th defendants mentioned the Appellant as one of them in this robbery is a ruse and false.

On the issue of identification parade, it is trite that an identification parade is not a sine qua non for identification in all cases where there have been fleeting encounters with the victim of the crime or if there is yet another piece of evidence leading conclusively to the identity of the accused person. Also, where there is certainty or no dispute as to the identity of the accused, there will be no need for any identification parade.
However, in Archibong v. State (2004) 1 NWLR (Pt.855) at 509-510 – An identification parade is essential in the following instances:- (a) Where the 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 an (c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused. The robbery in this case took place on 18/4/2013. The Appellant was arrested on 20/7/2016 that is more than 3 years after the incident. The victim of the robbery stated that she did not know the Appellant before the robbery and that the whole incident happened for only about 5 minutes. How then was the Appellant identified by the victim of the robbery? The victim of the robbery Aroyehun Ganiyat, testified as PW2. Her evidence is contained from pages 109 to 110 and reproduced hereunder:-
I live at No.19 Harmony Street Basin, Ilori. I know all the 4 accused person. On 18/4/2013 I was at a petrol station SOT, Petrol Filling Station long Taoheed Road at Ilorin, Basin area at about (9.00 or 10.00 a.m I just saw somebody open the door against me to come down where is the security of this vehicle. That the 1st accused person. Before I knew what was happening all the people at the station lied down remaining me in the vehicle. I saw the person was holding a gun, I had to leave the vehicle and join others to lie down. The 1st accused person entered and drove the vehicle and all the other accused persons entered.
After they left I went to “F” Division at Tanke to report as that was the nearest police station. I was still there when I heard a vehicle was recovered, I thought it was mine I went to SARS Office to report. The number of my vehicle is FH 161 A8J. When I got there to the SARS office, I discovered it was not my vehicle. The vehicle is Honda Accord, 2005, end of discussion.
Cross-examination: I gave a statement to police when I reported this matter at “F” Division. I also gave a statement at SARS office. My vehicle was never recovered from any of the accused persons. I am giving evidence based upon my statement to police. It was upon the strength of my statement that can giving evidence today. To the best of my knowledge it was based upon the report that the police have filed the charge.
I don’t know the full meaning of SOT and the street number of the scene of crime. I was not the only person at filling station at that faithful day that want to buy fuel. I don’t know the number of petrol attendant but up to 3. All together the number of people at the petrol station are up to 10 on that day. Before that incident, I don’t know any of the 1st accused or any of the other accused. The incidence happened for about 5 minutes. None of the people at the petrol station knew them or recognize them on that day. I left the vehicle and joined others that lied down. It was all within 5 minutes.

The PW2 started her testimony thus; “I know all the 4 accused persons.” Under cross-examination she said; “Before that incident I don’t know the 1st accused or any of the other accused. The incident happened for about 5 minutes. None of the people at the petrol station knew them or recognized them on that day”. The fact that none of the people at the petrol station ‘knew them or recognized them’ on that day included the witness herself.

Of course, it is very unnatural for the PW2, with a gun pointing at her to have been able to recognize or identify the Appellant without any distinctive mark or something that can specifically identify him or mark him out after a period of more than 3 years.

​Apart from the foregoing, she hinged her evidence on the fact that she “gave a statement to police when I reported this matter at ‘F’ Division. I also gave a statement at SARS ……. I am giving evidence based upon my statement to the police“

The PW3 (IPO) corroborated her on this point of making a statement to the police thus “….We came back and invited her to the station where I recorded her statement and vital witnesses ….”

The question that agitates the mind here is why would this witness give oral evidence based on what she told the police in writing more than 3 years in respect of the matter instead of the police providing and tendering her statements made immediately after the incident. I have to state here and very clearly too that it is trite, that a statement made by a victim of a robbery incident or any other crime immediately after the incident, before there is time for reconstruction is very key in identifying the perpetrators of that crime.

​Certainly, the PW2 must have described or stated or gave particulars of the person(s) that robbed her in her said statements to the police immediately after the robbery. The only way to explain the withholding of her statements immediately after the incident is that those statements will not support the case of the prosecution here.

Worse still, in view of the description of the PW2 that the whole incident happened in about 5 minutes and that about 10 persons were in that filing station and the fact the incident happened more than 3 years before the Appellant was arrested. And more importantly, the fact that none of the persons in that filing station knew or identified the robbers, there ought to have been an identification parade which never took place in this case. This is a case where an identification parade is imperative. The identification of the Appellant as the robber in this case cannot be said to have been strong or beyond reasonable doubt.

​I now turn to exhibit P6, the said voluntary statement of the Appellant upon which he was convicted. The Appellant narrated how he was tortured in an effort to obtain the statement at page 122-123 of the record thus:-
On the 5th day after PW3 called me out. He said he was not satisfied with it. When it is time I will write another one.
After 4 days after at about midnight. I had slept when I was woken up that they are asking of me. I could not see because of the flashlight. I was told to follow a particular direction,
He said should turn my back and I was handcuffed. Some people look at me at the cell they asked them to move back.
He opened the door and brought me out of the cell. I met 4 people an officer with long gun went back and 3 officers took me away.
I was told to kneel down in that room and he looking at the window. I was told anyone who refuses to cooperate with them will be killed and will be buried at the back of the window.
They said it will not take them a biro of N20 that I want to collect their gun or dragging the gun with them that was why they kill him inside that room where PW3 was sitting, there were these long and short hot empty and some half papers. One of them was speaking English. One of them hit me with stick and got injured at the back of the head and blood was coming out.
He was calling the name of people I do not know I said except the people are brought that is when I can say whether I know them. One of them said I should look up and poured one liquid into my eyes.
It was as a result of the liquid poured on my eyes one can see that part of my eyes were dark. It can be seen from the picture the police took. The picture is taking on the suspects.
One of them was using the back of cutlass slapping me from both sides of my face it was in the attempt to dodge that cutlass injured me by the side of the face.
They continued to ask me of the names, I insisted until they bring the people to be able to identify them.
The cloth was removed and was told to sit down. I am demonstrating and stick was placed between my hands and I was hanged between two tables. That was where I got injured on the hands by the hand cuff.
One of them was using sticks to hit me on the joints. That was what caused the blood mark on my hand. He continued to beat me.
They confirmed to ask me and pain was too much. I now realize that if I tell them that I know everybody on this earth the police will release me. I now told them I know everybody on this earth. They should release me from where I was hanged. All of them were …. and I was released.
This is the …… on any head had and leg.
They did not talk of the first statement again. I was told to sign new statement.

The Appellant gave 3 verifiable marks of torture on his body, the first being the black spot in his eye as a result of the substance poured on it by the police. The second, is the scar of a matchet wound on his face and thirdly the healed scar on his arm as a result of the wound by handcuff as he was hung on the air and being beaten continuously with stick.

Evaluation of evidence does not start and end with the spoken words of a witnesses. It includes looking at and accessing documents, exhibits, verification of marks and scars on the body of the witness where there are in existence such marks and scars. The learned trial Judge failed to utilize the presence of the witness before him to confirm that there were indeed a black spot in his eye, a healed scar or mark on his face and a scar on his arm particularly during trial within trial.

Unfortunately, the PW3 was the star witness in the trial within trial. I have already described his evidence that linked the Appellant to this case as false and a ruse. It cannot be said that the trial Judge properly evaluated the evidence presented before him in this matter. Consequently, Exhibit 6 is far from being a voluntary confessional statement.

There is no evidence linking the Appellant to this robbery except exhibit 6. There is doubt on the identity of the Appellant as the robber who pointed a gun on the PW2 and snatched her car. There is no evidence of the where about of the car; who bought it and/or its disposal. Most importantly, the 3rd and 4th defendants who were said to have mentioned the Appellant as one of them not only that they denied knowing the Appellant but they were discharged and acquitted of the charges in this case.

On the issue of unlawful possession of firearms, it is trite that for the prosecution to establish the case of Unlawful possession of firearms, the following ingredients must be established;
a. That the defendant was found in possession of firearms.
b. That the firearm is within the meaning of robbery and firearms Act,
c. That the defendant has no license to possess the firearms
See the case of State v Oladotun 2010 10 NWLR (Pt. 1256) 542 AT 560-561.

​The evidence of the PW3 is that “upon the arrest of 1st defendant, a Beretta pistol with a live ammunition was recovered from him” and nothing more. There was no evidence whether he was armed with it on his person or recovered from his house upon a search conducted in his house. Berretta pistol and its ammunitions are defence weapons, that is; military/police weapons, why did the IPO not investigate the source of the pistol and the life ammunitions.

The evidence of the IPO, (PW3) was that “a Beretta pistol with a live ammunition was recovered from him”. However, the PW1 (Inspector Yusuf Dauda) the exhibit keeper in his own evidence said that it was a barrette pistol and 5 rounds of ammunition” I must note here the discrepancy between the evidence of PW3, the IPO, that ‘a live ammunition’ was recovered and that of the PW1, the exhibit keeper that “5 rounds of ammunition” were given to him for registration and safe keeping. This discrepancy has created doubt on what was recovered, if anything was indeed recovered from the Appellant, as the Appellant completely denied being in possession of any firearms.

​The evidence of the PW1 that the IPO (PW3) came to register the exhibit together with the Appellant is very strange. The duty of an exhibit keeper as rightly said is to receive exhibits from any IPO or any other Police Officer for safekeeping and not to interrogate or know the suspect from whom the exhibits were recovered. The purported question he claimed to have asked the Appellant can only show desperation and a plan to indict the Appellant by all means, which makes the evidence of the PW1 very suspect.

​Apart from that he gave evidence that:
“On 23/8/2016, at about 10;00 hrs, inspector Monday Ogidiagba of the same department brought all the accused persons before me at my office as exhibit keeper together with barrette pistol with 5 rounds of ammunitions in a case which is before the Court. I registered it in the exhibit register. The said barrette pistol with 5 round of ammunition is an exhibit before justice Isiaq in a similar case against all the accused persons”
Cross-Examination:
“My job as far as this case is concerned is to keeping of exhibits. I was not part of the team that investigated the case. I was not told from whom the exhibits were recovered. The exhibits were brought along with the accused. I know where the items were recovered. I used to ask question and the 1st accused person told me that the items were found in his possession. I was not there but to put my record straight in the record book, I ask the question and the 1st accused said the items were found on him. I am not a ballistician to know when the pistol was used last but it is serviceable pistol that can discharge ammunition being a professional police officer I can say that…”

​It is on record that the other accused persons were already in detention before the arrest of the Appellant on that 23/8/2016. The 2nd defendant’s statement in this case was obtained on 26/09/2016, that is more than one month after 23/8/2016. (see pages 15-16 of the record) while his testimony in Court as DW2 confirmed that he made a statement to the police on 26/09/2016(see page 126 of the record) no mention or reference was made to the visit to the exhibit keeper on 23/8/2016. The 3rd defendant’s statement was obtained on 17/9/2016, therein he stated that he met the 1st accused for the first time in Court on 17/8/2016. That is 5 days before 23/8/2016 when he was purportedly taken to PW1 with the other accused persons. The 4th accused person also made his statement on 17/9/2016 after the said 23/8/2016, he equally claims to have met the Appellant for the first time in his life in Court on 17/8/2016. It can be seen very clearly that the PW1 lied in his aforesaid testimony.

Be that as it may, he (PW1) gave evidence that “I had tendered it before justice Ishaq, and this Court on different cases because the complainant are different. One of the charges is unlawful possession of firearms. It is used for different offences” It is on record that the other accused persons were arrested in 2013 and were undergoing prosecution in various Courts before the Appellant was arrested in 2016. There is no other evidence of any other charge against the Appellant before the particular lower Court that handled this case so which other cases did the witness had in mind when he gave evidence that he had tendered it before “this Court on different cases”. If the cases referred to were those involving the other accused persons it means the pistol and ammunition were recovered before the arrest of the Appellant in July 2016. Coupled with the obvious discrepancy from the evidence of the IPO that “a live ammunition” was recovered against the evidence of the PW1 (exhibit keeper) that “5 rounds of ammunition were brought for safe keeping. Certainly, a doubt has been created on whether any live ammunition was indeed recovered from the Appellant and that doubt must be resolved in his favour. Consequently, the two issues raised in this appeal are resolved in favour of the Appellant.

​I must have to say here that it is possible that the Appellant was a notorious armed robber. That is not the issue in this case. The issue is whether the Appellant was that robber or one of those robbers that robbed the PW2 of his car at gunpoint on 18/4/2013 at S.O.T filing station along Taoheed Road Ilorin. The answer is clearly very doubtful. This appeal therefore is meritorious. It ought to succeed and it has succeeded. The conviction and sentence of the Appellant in charge NO: KWS/43C/2017 which gave rise to this appeal is hereby set aside. The Appellant is discharged and acquitted of the charges in charge NO: KWS/43C/2017. Judgment is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment of my learned brother KENNETH IKECHUKWU AMADI, Ph.D. JCA. I agree with his reasoning and final conclusions. However, I must lend my voice to the question of identification of an accused person.

“Correct identification of an accused person is very crucial in order to ensure that there is no miscarriage of justice. Proper identification is a question of fact to be considered by the trial Court on the evidence adduced for that purpose; UKPABI VS. STATE (2004) 11 NWLR (PT.884) 439. Identification of an accused person means a whole series of facts and circumstances for which a witness or witnesses can associate an accused person. These may include evidence in the form of fingerprints, handwriting, voice, identification parade, photographs or the recollection of the features of the accused person by a witness who saw him in the commission of a crime or a combination of two or more of these; ARCHIBONG VS. STATE (2006) 14 NWLR (PT.1000) 349; ANYANWU VS. STATE (1986) 5 NWLR (PT.43) 612.”
Per OTISI, JCA in KESENA VS STATE (2017) LPELR 42458.
Again in STATE VS AIBANGBEE (1988) LPELR 3208 Nnaemeka- Agu JSC held.
“…identification is a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of fingerprints; handwriting, palm prints, voice, identification parade, photographs, or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of these. Whereas in this case, evidence of the recollection of the witness of the features of the culprit is relied upon, it must be very cautiously regarded by the Courts for fear of mistaken identification. But fear of mistaken identification could be removed by evidence such as that the identifying witness gave full and correct description of the accused person to the police at the earliest opportunity after the commission of the offence; See R. v. Long (1973) Crim. L.R. 577 (C.C.A.).”

​In this appeal, the victim PW2 could not identify the Appellant positively. She said in her own words, the whole robbery lasted about 5 minutes indicating that the period of 5 minutes was not enough for her to have been in a position to be able to identify the accused positively. Moreover, the Appellant was apprehended some 3 years after the robbery.

It would be dangerous to convict the Appellant on an identification that is suspect. This doubt must be resolved in favor of the Appellant.

I therefore, hold that this appeal has merit. It is allowed. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment delivered by my learned brother, KENNETH IKECHUKWU AMADI, JCA. I agree that there is merit in the appeal and it is allowed by me. I abide by the consequential orders.

Appearances:

Abiodun Dada, Esq. with him, Olawale Ogundele, Esq. For Appellant(s)

F. O. Morounfoye, Esq. (SSC) with him, F. B. Alaya, (SSC), Y. O. Yusuf, (SSC) and Issa Zakari, (PSC) For Respondent(s)