KAYODE AYODEJI v. THE STATE (2017)

KAYODE AYODEJI v. THE STATE

(2017)LCN/9427(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of January, 2017

CA/I/54C/2013

RATIO

EVIDENCE: STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
It is trite that in criminal cases, the burden of proof lies on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 135 Subsection 1 of the Evidence Act 2011 which states:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. PER MODUPE FASANMI, J.C.A.
CRIMINAL LAW: MEANING OF CONSPIRACY
“Conspiracy is an agreement between two or more people to commit an unlawful act or lawful act by unlawful means. The agreement alone constitutes the evidence. Conspiracy is rarely proved by direct evidence. It is a matter of inference deduced from certain criminal acts of the parties concerned alone in pursuance of a criminal purpose in common between them. See the cases of Oduneye v. State (2001) 2 NWLR part 697 page 311 at 325, Osundu v. Federal Republic of Nigeria (2000) 12 NWLR Part 682 at 483 and Upahar v. State (2003) 6 NWLR page 816 at 239. PER MODUPE FASANMI, J.C.A.

EVIDENCE: EFFECT OF RETRACTION OF CONFESSIONAL STATEMENT ON ADMISSIBILITY OF EVIDENCE IN TRIAL
The mere retraction of the Appellants confessional statement at the trial wherein he confessed conspiring with others is of no effect in the admissibility of same once the Court is satisfied as to its truth. PER MODUPE FASANMI, J.C.A.

CRIMINAL LAW: WHEN IS THE APPROPRIATE TIME TO RAISE THE DEFENCE OF ALIBI
The position of the law as regards the issue of alibi as a defence is that it should be raised at the earliest opportunity. This will enable the police to investigate the alibi. See the case of Afolalu v. The State (2010) 16 N.W.L.R. (Pt. 1220) Pg. 584. PER MODUPE FASANMI, J.C.A.

JUSTICES

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

KAYODE AYODEJI Appellant(s)

AND

THE STATE Respondent(s)

MODUPE FASANMI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court of Justice in Suit No. AB/21R/2007 delivered on the 20th of March 2012.

Appellant and two others namely Adekunle Olatunji (2nd Accused) and Adelugba Adedotun (3rd Accused) were charged with the offences of conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provision Act) (Cap R11) Laws of the Federation of Nigeria 2004.

The charges brought against the Appellant and the other two accused persons read:
1) COUNT ONE
Statement of Offence
Conspiracy to commit a felony contrary to Section 6(b) punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
AYODEJI KAYODE, ADEKUNLE OLATUNJI and others now at large on or about the 22nd day of June, 2006 at No. B1/33 Elega Federal Housing Estate, Abeokuta in the Abeokuta Judicial Division conspired together to commit armed robbery.

2) COUNT TWO
Statement of

Offence
Conspiracy to commit a felony contrary to Section 6(b) punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
ADEKUNLE OLATUNJI, ADELUGBA ADEDOTUN and others now at large on or about the 14th day of December, 2006 at a place opposite IMA College, Surulere area, Off Abiola Way, Abeokuta in the Abeokuta Judicial Division conspired together to commit armed robbery.
3) COUNT THREE
Statement of Offence
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
AYODEJI KAYODE, ADEKUNLE OLATUNJI and others now at large on or about the 22nd day of June, 2006 at No. B1/33 Elega Federal Housing Estate, Abeokuta in the Abeokuta Judicial Division while armed with firearms and offensive weapons to wit: gun, cutlass and knife robbed Akinlade Kolawole of the sum of N122, 000.00, two (2) Nokia handset with line, Wrist Watch and Car-Stereo with Speaker.
4) COUNT FOUR
Statement of Offence
Armed

Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R.11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
AYODEJI KAYODE, ADEKUNLE OLATUNJI and others now at large on or about the 22nd day of June, 2006 at No. B1/33 Elega Federal Housing Estate, Abeokuta in the Abeokuta Judicial Division while armed with firearms and offensive weapons to wit: gun, cutlass and knife robbed Akinlade Serifat Bolanle of the sum of N82,500.00, Jewelries, Clothes, Wrist Watches and Nokia Handset.
5) COUNT FIVE
Statement of Offence
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
ADEKUNLE OLATUNJI, ADELUGBA ADEDOTUN and others now at large on or about the 14th day of December, 2006 at a place opposite IMA College, Surulere area, Off Abiola Way, Abeokuta in the Abeokuta Judicial armed with firearms and offensive weapon to wit: gun and cutlass robbed Adio Ayodele (M) of the sum of N12, 000.
(6) COUNT SIX
Statement of Offence
?Armed Robbery contrary to

Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11), Laws of the Federation of Nigeria, 2004.
Particulars of Offence
ADEKUNLE OLATUNJI, ADELUGBA ADEDOTUN and others now at large on or about the 14th day of December, 2006 at a place opposite IMA College, Surulere area, Off Abiola Way, Abeokuta in the Abeokuta Judicial armed with firearms and offensive weapon to wit: gun and cutlass robbed Mary Ayodele (F) of a Motorola handset and a Wrist Watch.

From the counts reproduced above, there were two armed robberies carried out on 22nd of June 2006 and 14th of December 2006 respectively. Appellant with the 2nd Accused who has not appealed were charged in counts one, three and four. The counts deal with the armed robbery carried out on the 22nd day of June, 2006. This Court will state the facts of the Respondent?s case as it relates to the armed robbery involving the Appellant and his gang on the 22nd of June 2006 being the armed robbery that the Appellant was charged with in counts one, three and four in which the Appellant and the 2nd accused were convicted and sentenced to death.

?It is the Respondent?s

case that there were series of armed robbery incident in Abeokuta between June ? December 2006. On the 22nd of June 2006, Sherifat Bolanle Akinlade (PW1) and her late husband were robbed by armed robbers in their home at the Federal Housing Estate, Elega at about 1.30 a.m. There was electricity throughout the operation powered by a generating set. PW1 switched off the light when she noticed that they were armed robbers but the armed robbers switched it on and they were not masked. After ransacking PW1?s room and that of her husband, they made away with valuables. The armed robbers thereafter instructed PW1 to lead them to her mother-in-law?s apartment. The mother-in-law and sister-in-law were robbed of their valuables. A call was made to the police who sprang into action and immediately the Appellant was arrested and some items found with him which were later identified by PW1 as part of the valuables taken from her house.

?Appellant and the other accused persons pleaded not guilty to the charges. Respondent called eight witnesses in support of its case and tendered Exhibits, while the Appellant and the two other accused persons called

seven witnesses in their defence. At the end of the trial, learned counsel for the parties submitted written addresses. In a well-considered judgment delivered on the 20th of March 2012, Appellant was found guilty and sentenced to death by hanging.

Dissatisfied with the judgment, Appellant appealed to this Court. Appellant?s original notice of appeal at page 412 of the record of appeal was filed on the 29th of March 2012. The amended notice of appeal dated 9/10/15 but filed on the 14th of September 2016 was deemed properly filed on 4/10/16 pursuant to the order of this Court made that day. Appellant?s brief of argument was filed on the 5th of Oct. 2016. Respondent?s brief of argument was filed on the 12th of Oct. 2016. Appellant?s reply on point of law was filed on the 28th of Oct. 2016.

At the hearing of the appeal, learned counsel for the parties adopted and relied on their respective briefs of argument. Learned Counsel for the Appellant urged the Court to allow the appeal while Learned Counsel for the Respondent urged the Court to dismiss the appeal as lacking in merit.

Appellant in his brief of argument distilled

four issues for determination thus:
1. Whether the prosecution established a case of armed robbery against the accused or linked him to the scene of the crime.
2. Whether the Honorable Trial Court was right in law to have admitted the confessional statement of the Appellant when all the accused persons denied making the statement voluntarily.
3. Whether the Court considered all the defences open to the accused persons particularly the defence of alibi.
4. Whether it was right for the trial Court to have resolved doubts in favour of the prosecution to convict the accused.

The Respondent distilled two issues for determination in Paragraph 3.00 of its brief of argument thus:
3.02 Whether the prosecution has proved the offence of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt vis a vis the confessional statement of the appellant.
3.03 Whether the trial Court was right in failing to uphold the defence of Alibi relied upon by the Appellant at the trial.

?I have examined the issues formulated by the parties and I am of the view that the issues formulated by the Respondent will

determine the controversy between the parties. The appeal will be determined on the two issues formulated by the Respondent.
Issue One
Whether the prosecution has proved the offence of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt vis–vis the confessional statements of the Appellant.

Learned Counsel for the Appellant contended that the efforts of the Respondent fall short of establishing beyond reasonable doubt that the Appellant is guilty of the crime of armed robbery if any was actually committed. Submitted that Appellant has only two counts against him i.e. (1st and 4th Counts), the 3rd count having been abandoned by the prosecution. To establish the offence of armed robbery, the Respondent must prove beyond reasonable doubt the followings:
(1) That there was a robbery or a series of robberies.
(2) That each robbery was an armed robbery.
(3) That the accused was one of those who took part in the armed robbery.

Learned Counsel for the Appellant on the above proposition referred to the case Faleye v. State (2014) ALL FWLR (part 713) page 1942. Submitted that

there is no credible evidence pointing to the robbers being armed as alleged by the Respondent. PW1 in her testimony claimed that the Appellant came armed in the company of two others to rob her while Appellant testified that he did not rob PW1. The Police who claimed to have arrested the Appellant and found some bags thrown away did not find any gun. He contended that there cannot be a valid conviction for the offence of armed robbery without an evidence of an arm. He submitted further that PW1 testified that on the night of the robbery, she, her deceased husband, mother-in-law were in the house when they were robbed. It is surprising that none of the two surviving witnesses were called to corroborate the fact that they were robbed, the robbers were armed and that the Appellant was among the robbers. Learned Counsel for the Appellant submitted that where the prosecution fails or refuses to call a necessary witness, the presumption will be that the evidence if called would be against its case. He referred to the case of Odunayo v. State (2001) FWLR (part 38) page 1203 at 1219 paras A-B.

Learned Counsel for the Appellant submitted further that the alleged

confessional statement of the Appellant admitted by the learned trial Court did not meet the established tests to verify the voluntariness of a confessional statement. Submitted that the Court in the trial within trial of the two witnesses that were called at pages 67-70 of the record, the Respondent?s witness testified that he did not threaten or induce the Appellant to obtain his statement but the Appellant on the other hand graphically testified of his ill-treatment before his testimony was obtained in English when he told the Policeman he can write in Yoruba. He contended that the Appellant was coerced into signing the alleged statement by the Investigating Police Officer. He was threatened and tortured. He urged the Court to discountenance the confessional statements. He referred to the case of Evop v. State (2013) ALL FWLR (part 681) page 1571 and Onochie v. Odogwu (2006) ALL FWLR (part 317) page 544 or (2006) 2 SC (part 11) page 153. Learned Counsel for the Appellant urged the Court to hold that the Respondent has failed to prove the offence of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt. He

urged the Court to resolve issue one in favour of the Appellant.

Learned Counsel for the Respondent submitted that the Appellant in his confessional statements confessed to conspiring with the 2nd accused person and some others at large. Appellant vividly stated how he and his gang members carried out the armed robbery operation together showing that they acted in common. Submitted that the trial Court was right in holding that the prosecution has proved the offence of conspiracy to commit armed robbery against the Appellant.

?On the ingredient of the offence of armed robbery, learned counsel for the Respondent submitted that there was a robbery is not in issue because there have been series of robberies between June -December 2006. Submitted that the Appellant was one of the armed robbers that robbed PW1 on the 22nd of June 2006. When the Appellant and other robbers entered her house they were armed. The Respondent contended that the Appellant confessed to the armed robbery in Exhibits B, C, D and E. Appellant while giving evidence retracted Exhibits B, C, D and E and stated that he did not know the 2nd and 3rd accused persons. Submitted that the

said Exhibits were rightly admitted and the only consideration is the weight to be attached to them having considered all the circumstances of the case. He referred to the case of Ismail v. State (2011) 10 SCM page 35 at 39 para 4 per Tabai J.S.C. The trial Court can convict on the confessional statement of an Appellant alone where same is direct, positive and proved. He referred to the case of Abirifan v. The State (2013) 9 SCM page 1 at page 4.

Respondent submitted that Appellant could not satisfactorily explain how the items identified by PW1 as hers came to his possession. He submitted further that the law does not impose any obligation on the Respondent to call a village of witnesses to prove its case. Submitted that the contradictions mentioned by the Appellant?s counsel are immaterial. Reliance was placed on the case of Musa v. The State (2013) 3 SCM page 79 at 83 per Peter Odili JSC where he opined that:
?Not every miniature contradiction can vitiate the case of the prosecution ——— minor contradictions which did not affect the credibility of witness will be of no avail to the Appellant.?

?Learned Counsel for the

Respondent urged the Court to hold that the Respondent has proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt and resolve issue one against the Appellant.

It is trite that in criminal cases, the burden of proof lies on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 135 Subsection 1 of the Evidence Act 2011 which states:
?If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.?

?Conspiracy is an agreement between two or more people to commit an unlawful act or lawful act by unlawful means. The agreement alone constitutes the evidence. Conspiracy is rarely proved by direct evidence. It is a matter of inference deduced from certain criminal acts of the parties concerned alone in pursuance of a criminal purpose in common between them. See the cases of Oduneye v. State (2001) 2 NWLR part 697 page 311 at 325, Osundu v. Federal Republic of Nigeria (2000) 12 NWLR Part 682 at 483 and Upahar v. State (2003) 6 NWLR page 816 at

239.

Applying the above principle to the case at hand, Appellant in his confessional statements, Exhibits B, C, D and E stated how he and his gang members carried out the armed robbery operation together showing that they acted in common. PW1 at page 47 of the record of appeal stated thus:
?Then the voice came that we should get up and open the door that if they force it open we are in trouble. Then we got up and opened the door, three (3) people came in with gun in their hands ———-
Thereafter they asked me for who was living in the 2nd apartment to our room and I said my mother in law lives there. They instructed me to take them there. It was the 1st and 2nd accused and the other who came with them who were ordering me around. Then I took them to my mother in law. By the time I got to my mother in law?s room, the light was off and the accused person switched on the light.?

?The learned trial Judge at page 408 of the record of appeal had this to say:
?Upon the totality of the evidence earlier reviewed particularly the statement of the 1st and 2nd accused persons, the prosecution has established beyond

reasonable doubt that there was an agreement between the 1st and 2nd accused persons to do an unlawful thing to wit armed robbery. In this regard, I uphold the submission of the learned D.D.P.P. in its entirety as regards conspiracy between the 1st and 2nd accused persons and others at large?.

The learned trial Judge was right in holding that the Respondent had proved conspiracy to commit armed robbery in this case against the Appellant. The mere retraction of the Appellant?s confessional statement at the trial wherein he confessed conspiring with others is of no effect in the admissibility of same once the Court is satisfied as to its truth.

?On the offence of armed robbery, the evidence of PW1 was that on the 22nd of June 2006 when the Appellant and other members of his gang entered her flat, they were armed. At page 47 line 5 PW1 stated thus:
?Three (3) people came in with gun in their hand?
At page 48, PW1 stated further:
?By the time the Police and the security men returned, they came back with the 1st accused person. ————-
The Police then asked if I can identify my properties and I said

yes. The Policemen asked the 1st accused to open the bag in his hand and when he opened it, I saw my clothes and some of my children?s clothings, our hand set and money in the bag.?

PW5 at pages 63-64 of the record stated thus:
?My name is Chidozie Atamnno. I am Inspector of Police with AP No. 55834. I know the 1st accused person ——————– On the 22nd of June 2006, I was on duty at Adatan police station with my team on patrol and about 03.00 hours, there was a distress call received at the charge room that armed robbers were operating at Elega Housing Estate. Myself and 4 other Policemen were detailed and we proceeded to the scene at block B1/33 Elega Estate. On our arrival at the scene other landlords in the estate that had come to rescue the robbery victim informed me that the robbers have escaped through Elega/Saje Oke-Aregba axis. We then went after the robbers through the alleged escape route —————
We then pursued them, they abandoned the bags but in the process, the 1st accused person was arrested when he was searched, a cash sum of N21,300. 00 was recovered from him along with a Nokia Handset.

The items were recovered from his jeans pocket—————–And on our arrival back at the Elega Housing Estate?.. It was then that the victim saw the 1st accused person and all the bags containing the children clothing and the handset. The complainant immediately identified the handbags, clothes and handset as some of the things stolen by the robbers. We took both the recovered items and the 1st accused person to Adatan Police Station. At the police station, the handset recovered from the 1st accused person rang and a lady from Lagos who claimed to be the senior sister to the victim?s wife. Then this was when the 1st accused person told us that the handset and money was part of his own share of the stolen properties?.

?The involvement of the Appellant is further corroborated by the evidence of PW6, PW7, PW8 and Exhibits B, C, D and E. Appellant in Exhibit B stated thus:
?On 21/06/2006 at 8 p.m, we arrived Abeokuta, we went and hide (sic) ourselves in a bush within Elega housing and when it was 3 a.m. the three of us went to one man?s flat

. robbed him of his Nokia handset and clothing materials.. and some money where my own share was N23,000.00 we did not use gun to rob, we only use plank to threaten our victim ?. Actually I was caught by the police patrol when I wanted to escape .?

Learned counsel for the Appellant submitted that given the circumstances of this case, the necessity of an identification parade cannot be dispensed with. It has been decided by a plethora of authorities that identification parade is not obligatory where there is good and cogent evidence linking the accused to the crime. Identification is only essential where:
(1) The victim due to time and circumstances might not have had full opportunity of observing the features of the accused.
(2) Where the victim or witness was confronted by the accused for a short time.
See the cases ofAdeyemi v. State (1999) 1 N.W.L.R. (Pt. 170) Pg. 69 and Afolalu v. The State (2010) 16 N.W.L.R. (Pt. 1220) Pg. 584.

?In the

instant case, PW1 was the victim and she had close contact with the Appellant and the other two accused persons. She had enough opportunity to observe the Appellant and the other two accused persons. The evidence of PW1 is very clear and firm regarding the involvement of the Appellant and 2nd accused persons in the robbery of the 22/06/2006. PW1 stated at page 46 of the record that:
?On the that day, there was no power supply, as such there was no light, but we had our generating plant on?
At page 47 she stated further that:
?It was the 1st and 2nd accused and the other who came with them were ordering me around.?

The learned trial Judge at page 393 of the record found as follows:
?As highlighted earlier, the PW1 was not shaken during cross-examination, also the 1st accused was arrested with some of the items stolen from the house of the PW1 the same early hours of the morning by the police patrol that was called up. I now ask, what other identification does the Court need? The submission of Mrs. Oniyide in this regard is thus over ruled.?

?An accused person can be convicted on his

confessional statement alone without corroborative evidence if it is direct, positive, duly made and satisfactory proved. See the case of Akpa v. The State (2007) 2 N.W.L.R. (Pt. 1019) Pg. 500 at paras A ? G.
It is however desirable to have outside the confession some evidence be it slight of the circumstances which made it possible that the confession is true. The confessional statements of the Appellant are corroborated by the testimony of PW1 and the Exhibits recovered from the Appellant. The retraction of Appellant?s confessional statement is of no moment once the Court is satisfied as to its truth.

The trial of any case does not depend on the number of witnesses except where the law required more than one witness. A Court can rely on the evidence of one single witness provided the witness can be believed given all the surrounding circumstances of the case. See Agbi v. Ogbeh (2006) ALL F.W.L.R. (Pt. 329) Pg. 941 at 983 paras A ? D.

The contradictions mentioned by the Appellant are minor and have not affected the credibility of the prosecution witnesses to warrant a reversal of the judgment. See the case of Dagayya v.

State (2006) All F.W.L.R (Pt. 308) at Pg. 1212.

The learned trial Judge was right in convicting the Appellant on the totality of the evidence on the record since the Respondent has proved the case against the Appellant beyond reasonable doubt. Issue one is hereby resolved against the Appellant.

Issue Two
Whether the trial Court was right in failing to uphold the defence of alibi relied upon by the Appellant at the trial.

Learned counsel for the Appellant submitted that it is the duty of the trial Court to consider all the defences open to the Appellant whether the defence surfaced during trial. Reliance was placed on the case of Ahmed v. State (2001) F.W.L.R. (Pt. 34) Pg. 438 at 468 paras A ? B. Learned Counsel for the Appellant submitted further that once the defence of alibi is raised, it is the responsibility of the prosecution and in this instance, the Respondent to investigate and rebut such evidence in order to prove the case against the Appellant beyond reasonable doubt. He referred to the case of Adedeji v. The State (1971) 1 All N.L.R. (Pg. 75). Learned Counsel for the Appellant submitted further that the defence of alibi

raised during cross-examination should have compelled the trial Judge to hold that the prosecution actually failed to prove its case beyond all reasonable doubt and subsequently resolved the matter in favour of the Appellant. Submitted that Appellant?s claim was not controverted by the Respondent. He urged the Court to resolve issue two in favour of the Appellant and allow the appeal.

Learned counsel for the Respondent submitted that the Appellant raised his alibi for the first time at the trial. He stated in his evidence that it was one Madam Owolasooge that gave him the money for his mother?s burial. Submitted that the police cannot investigate an alibi raised for the first time at the trial or during the trial. It is too late. He referred to the case of Ndidi v. The State (2007) 10 S.C.M. (Pg. 101) at 105. Learned counsel for the Respondent submitted further that the evidence of PW1 fixed the Appellant to the scene of crime and even upon his arrest, the Appellant was taken back to the house of PW1 and when the bag found with him was searched, the properties of PW1 were recovered from the Appellant. Submitted that this act destroyed the

defence of alibi raised by the Appellant. Submitted that since the alibi was not raised at the appropriate time, the defence goes to no issue. He urged the Court to resolve issue two against the Appellant and dismiss the appeal as lacking in merit.

The position of the law as regards the issue of alibi as a defence is that it should be raised at the earliest opportunity. This will enable the police to investigate the alibi. See the case of Afolalu v. The State (2010) 16 N.W.L.R. (Pt. 1220) Pg. 584.

It is not every failure of the police to investigate an alibi raised by an accused that is fatal to the case of the prosecution. Where there is positive credible evidence fixing the accused to the scene of crime at the material time, the plea of alibi is destroyed. See the cases of Okolo Ochemaje v. The State (2008) 15 NWLR (pt. 1109) pg 57, Udoebre v. State (2001) 12 NWLR (pt. 728) and Sadiku v. The State (2013) 11 NWLR (pt. 1364) pg.191 at 271 para B.

?In the instant case, upon the arrest of the Appellant by the police and the security men of the community, some of the items stolen from PW1 were found with the Appellant (her clothes, children clothes,

handset and money) which were released to PW1 on bond (Exhibit A). Appellant could not satisfactorily explain how the items identified by PW1 came to his possession. Appellant is therefore presumed to be the thief under Section 167(a) of the Evidence Act 2011. Issue two is hereby resolved against the Appellant.

Finally, the appeal is devoid of merit and it is hereby dismissed accordingly. The judgment of the Ogun State High Court of Justice in Charge No. AB/21R/2007 delivered on the 20th of March 2012 is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, Modupe Fasanmi, JCA.

In most cases involving armed robbery, a crucial element has always been the identity of the armed robber(s) involved. This is because, it is common knowledge that robbers or armed robbers almost always try to conceal their identity. So prosecutors and indeed the Courts have had to grapple with the question whether, the accused person was identified as the robber or one of the robbers that committed the robbery charged. Where the accused is someone known to the victim(s) before the robbery

incident, the burden of proof is lessened. However, where the victim and the robber(s) are meeting for the first time in the course of the robbery, the question would be whether the victim properly and sufficiently identified the accused person as one of the robbers that attacked him or her.

In the instant case, the evidence on the record reveals that the Appellant was arrested some few hours after the robbery incident. Furthermore, some of the items said to have been stolen from the victims were recovered from him. The Appellant therefore had the burden of dispelling the presumption of law cast on him that he is one of the robbers that attacked the victims of the robbery that fateful night. The recovery of those items on the Appellant also go to corroborate the confessional Statement of the Appellant, thus satisfying the rule in R. v. Sykes (1913) 8 C.A.R. p.223. See Alarape v. The State (2001) 5 NWLR (Pt. 705) p 79; Nwaeze v. The State (1996) 2 NWLR (Pt.428) P.1 and Solola v. The State (2005) 11 NWLR (Pt.937) p.460. See also Salami v. The State (1988) 3 NWLR (pt.85) p.670; Aremu v. State (1991) 7 NWLR (pt.201) p.1 and Omogodo v. The State (1981) 5 S.C.

p.5

It is also not the law that the robbery weapon must be tendered before an accused person can be convicted of armed robbery. In the instant case, some of the robbers were said to have escaped. That being so, there was the probability that they escaped with the robbery weapons. See Gbadamosi v The State (1991) 6 NWLR (pt.196) p.182.

It is for the above reasons and the other reasons in the lead judgment that I agreed with my learned brother that this appeal has no merit. It is accordingly dismissed. The conviction and sentence meted out on the Appellant by the trial Court in Charge No: AB/21R/2007 is hereby affirmed.

NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment of my Lord Modupe Fasanmi JCA in this appeal relating to armed robbery trial of the appellant and his conviction thereof. Particularly instructive in the lead judgment is the observation of my lord at page 20 of the judgment thus:
It is however desirable to have outside the confession some evidence be it slight of the circumstance which made it possible that the confession is true. The confessional statements of the Appellant are corroborated by the testimony of

PW1 and the Exhibits recovered from the Appellant. The retraction of Appellant?s confessional statement is of no moment once the Court is satisfied as to its truth.
The trial of any case does not depend on the number of witnesses except where the law required more than one witness. A Court can rely on the evidence of one single witness provided the witness can be believed given all surrounding circumstance of the case. See Agbi vs Ogbeh (2006) All F.W.L.R. (pt.329) Pg. 941 at 983 paras. A-D.
The contradictions mentioned by the Appellant are minor and have not affected the credibility of the prosecution witnesses to warrant a reversal of the judgment. See the case of Dagayya vs. State (2006) All F.W.L.R. (Pt.308) at PG. 1212.

Beside the confession of the appellant which the trial Court received and acted upon, there is clear evidence of identification of the appellant by PW1 and evidence of other transactions implicating the appellant which justifies the conviction of appellant on the totality of the evidence.

?I agree with the lead judgment and accede to the orders made.

Appearances

Festus Adesiyan with him, Oyebanke Yebisi (Miss)For Appellant

AND

F.E. Bolarinwa Adebowale (Assistant Chief State Counsel, Ogun State Ministry of Justice)For Respondent