KOKU v. STATE (2020)

KOKU v. STATE

(2020)LCN/14002(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Monday, March 23, 2020

CA/IB/147CA/2017

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

JOJU KOKU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL TRIALS

Section 138(1) of the Evidence Act, Laws of the Federation of Nigeria 2004 provides that the standard of proof in a criminal trial is proof beyond reasonable doubt while Section 138 (2) and (3) place the burden to so prove on the prosecution.The burden does not shift. See BALOGUN VS. THE STATE (2018) 13 NWLR (PT. 1636) 321; OLADEJO VS. THE STATE (2018) 11 NWLR (PT. 1630) 238; DAUDU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1626)169; AMALA VS. THE STATE (2004) 12 NWLR (PT. 888) 520. PER AYODEJI, J.C.A.

INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

The ingredients to be proved by the prosecution to establish the offence of armed robbery have been enunciated in a plethora of authorities. See IBRAHIM VS. THE STATE (2015) 11 NWLR (PT. 1469)164; OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293)351; IGHALO VS. THE STATE (2016) 17 NWLR (PT. 1540)1; ORISA VS. THE STATE (2018) 11 NWLR (PT. 1631)453. The ingredients are:
(i) That there was a robbery or series of robberies;
(ii) That the robbery was an armed robbery;
(iii) That the accused was one of those who took part in the armed robbery.
Each of the above ingredients must co-exist. In other words, the Prosecution must prove each of the ingredients beyond reasonable doubt. Where the Prosecution fails to do so, the Accused Person must be exonerated and acquitted of the offence. See UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346; BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465; AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619.

The law is further settled that the guilt of an Accused Person can be established through any of the following methods:
1. Direct evidence of an eye witness
2. Circumstantial evidence and
3. Accused Person’s confessional statement
See ITU VS.THE STATE (2016) 5 NWLR (PT. 1506) 443; ABIRIFON VS. THE STATE (2013) 18 NWLR (PT. 1372)587; ILODIGWE VS. THE STATE (2012) 18 NWLR (PT. 1331)1. PER AYODEJI, J.C.A.

WHETHER OR NOT THE EXTRAJUDICIAL STATEMENT OF AN ACCUSED PERSON SHOULD BE RECORDED IN THE LANGUAGE IT WAS MADE BY THE ACCUSED PERSON

While it is desirable that an extrajudicial statement should be recorded in the language in which it was made by the accused person before it is translated into English, failure to record in vernacular would not render the English translation inadmissible. See THE QUEEN VS. OMEREWURE SAPELE & ANOR (1957) SCNLR 307; AND AJIDAHUN VS. THE STATE (1991) 9 NWLR (PT. 213) 33. In OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746)793, the Supreme Court, per Onu, JSC held thus:
“This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See QUEEN VS. BABA HASKE (1961) 1 ALL NLR 330 AT 333.” PER AYODEJI, J.C.A.

WHETHER OR NOT THE COURT IS BOUND TO CONSIDER AN EXTRAJDUICIAL STATEMENT OF AN ACCUSED PERSON ADMITTED WITHOUT OBJECTION

The law is settled that where an extra judicial statement of an accused person is admitted without objection, it becomes part of the case of the prosecution and the Court is duty bound to consider it. Where an accused person did not contest the voluntariness of his statement, the confession therein is deemed to be an admission of guilt. See SANNI VS. THE STATE (2018) 8 NWLR (PT. 1622)412; MATTHEW VS. THE STATE (2018) 6 NWLR (PT. 1616)561. PER AYODEJI, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON SOLELY ON HIS EXTRAJUDICIAL STATEMENT

Authorities abound that a Court may safely convict an Accused Person solely on his extra judicial statement which is voluntary but inconsistent with his oral evidence in Court. See MUSA VS. THE STATE (2018) 13 NWLR (PT. 1636)307; STATE VS. ISAH & ORS (2012) 16 NWLR (PT. 1327)613. IN AKEEM V STATE (2017) 18 NWLR (PT. 1597) 311, Bage, JSC held thus:
“This Court again in SHUAIBU ABDU VS. THE STATE (2016) 12 SC (Pt. VI) at Page 103 held that:-
“… the prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact that a free and voluntary confession of guilt whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See THOMAS AKPAN EKONG VS. THE STATE (2013) All FWLR (pt. 685) 353; ODEH v. F. R. N (2008) 3 -4 SC 142″.
However, in EGBOGHONOME VS. THE STATE (1993) 7 NWLR (pt. 306) 383 It was held that:-
“Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such u-turn does not necessarily make the confession inadmissible.”
See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS. THE STATE (1984) 6 SC 85; EJINIMA VS. THE STATE (1991) 6 NWLR (Pt.200) 62: AKPAN VS. THE STATE (1992) 6 NWLR (Pt.248) 439 and AKINFE VS. STATE (1988) 3 NWLR (Pt.85) 729.” PER AYODEJI, J.C.A.

WHETHER OR NOT RETRACTION MAKES A CONFESSIONAL STATEMENT UNRELIABLE

The law is settled that such retraction does not make the statements unreliable.Once the statement is admitted in evidence, the trial court has a duty to determine the weight to be attached to it.It is however desirable in such circumstance that the confessional statement be corroborated by some evidence outside it.See FABIYI VS. THE STATE (2013) 18 NWLR (PT. 1490)80; SULE VS. THE STATE (2009) 17 NWLR (PT. 1169)33; OSETOLA & ANOR VS. THE STATE (2012) 17 NWLR (PT. 1329) 251; MOHAMMED VS. THE STATE (2014) 12 NWLR (PT. 1421)387. In MUSA VS. STATE (2013) 9 NWLR (PT. 1359) 214 Peter-Odili, JSC held thus:
“Therefore, the fact that the appellant resiled from that Exhibit A, the confessional statement would not affect negatively the evaluation of the evidence plus that statement which when taken through the tests that qualifies a confessional statement to be used. In that vein, the judge would ask himself the following questions:
1. Is there anything outside the confession to show that it is true?

2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as they can be tested?
4. Was the prisoner one who had the opportunity of committing the rape?
5. Is his confession possible?
6. Is it consistent with the other facts which have been ascertained and have been proved?
It needs be restated that this Court, the apex Court had decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be live is sufficient to support a conviction once it meets with the six point test stated above.”PER AYODEJI, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court sitting in Abeokuta in Suit No. AB/4R/2015 delivered on the 28th day of February 2017.

The Appellant and one other person were arraigned before the lower court on a two count charge alleging the offences of Conspiracy to commit the offence of armed robbery and armed robbery contrary to Sections 6(b) and 1(2)(a)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria 2004 respectively.

The two counts of the charge are as follows:
COUNT I
STATEMENT OF THE OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to Section 6(b) and 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 THE OFFENCE
JOJU KOKU (M). FABU KOKU (M) and others now at large on or about the 6th day of November, 2012 at Asiadu Village via Obafemi-Owode in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF THE OFFENCE

ARMED ROBBERY, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF THE OFFENCE
JOJU KOKU (M), FABU KOKU (M) and others now at large on or about the 6th day of November, 2012 at Asaidu Village, Ajebo via Owode-Egba in the Abeokuta Judicial Division while armed with gun and cutlasses robbed Kojo Debue (M) of the sum of N300,000.00 (Three Hundred Thousand Naira).

The Appellant and the Co-accused pleaded not guilty to both counts of the charge. At the close of trial, the trial judge convicted them of the offences alleged in the two counts and sentenced them to death.

Dissatisfied with the conviction and sentence, the Appellant appealed to this Court vide a Notice of Appeal filed on 28th March 2017.The Notice of Appeal consists of eight grounds.

Briefly, the facts of the case as presented by the prosecution before the lower Court is that sometimes in November 2012, the Complainant was robbed of the sum of N300,000 in his house by some armed men. Immediately after the robbery, the complainants informed the vigilante men guarding his area of the

incident. The men immediately swung into action by conducting a search in the neighborhood and in the process arrested the Appellant.

Parties filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument settled by Francis Rotimi Adeniji Esq. was filed on 26th October 2017 and deemed properly filed and served on 26th November 2018. The Respondent’s Brief of Argument filed on 14th February, 2019 was deemed as properly filed and served on 6th May 2019.

The Appellant filed an Appellant’s Reply Brief on 22nd May 2019 which was deemed as properly filed and served on 29th January 2020.

Learned Counsel to the Appellant formulated the following three issues for the determination of this appeal to wit:
1. Whether or not the ingredients of the offence of Armed Robbery was proved against the Appellant as required by the provisions of S. 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 Laws of the Federation, 2004.
2. Whether the said confessional statements of the Appellant relied upon by the learned trial Judge was credible and acceptable under the law to secure the conviction

and sentence of the Appellant.
3. Could the Appellant not have been availed the defence of alibi.

The following issues were formulated on behalf of the Respondent in the Respondent’s Brief of Argument:
1. Whether the prosecution has proved the offences of conspiracy to commit Armed Robbery against the Appellant beyond reasonable doubt, having considered the defence of alibi raised by the Appellant.
2. Whether the trial Court rightly admitted and relied on the Appellant’s confessional statement having regard to the circumstances of the case.

The Issues formulated by both parties are similar in context. Issues 1 and 2 formulated on behalf of the Appellant can be fused into one. I shall therefore adopt the issues formulated by the Appellant with some slight modifications.The issues formulated by me for the determination of this appeal are as follows:
1. Whether the Prosecution proved the offences for which the Appellant stood trial beyond reasonable doubt to warrant his conviction. (The issue is distilled from Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal.)
2. Whether the defence of alibi can avail the

Appellant. (This issue is distilled from Ground 6 of the Notice of Appeal)

ISSUE NO. 1
“Whether the Prosecution proved the offences for which the Appellant stood trial beyond reasonable doubt to warrant his conviction.
Arguing this issue, learned Counsel to the Appellant submitted that in order to prove the offences alleged against the Appellant, the ingredients of the offence must be established beyond reasonable doubt. He craved in aid the following cases: OKANLAWON VS. THE STATE (2015) 17 NWLR (PT. 1489)445 AT 449; BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8)465; ALABI VS. THE STATE (1993) 7 NWLR (PT. 307) 511; OLAYINKA VS. THE STATE (2007) 9 NWLR (PT. 1040) 561; OSETOLA VS. THE STATE (2012) 17 NWLR (PT. 1329) 251.

He argued that failure of the prosecution to call the victim of the crime as a witness throughout the course of trial to give account of the incident was fatal and that evidence from all the prosecution witnesses including PW1 on the robbery incident is inadmissible hearsay evidence. He relied on the cases of EKPO VS. THE STATE (2001) 7 NWLR 292 AT 297; MANAGEMENT ENTERPRISES LTD VS. OTUSANYA (1987) 2 NWLR (PT. 55)179;

ADEKA VS. VAATIA (1987) 1 NWLR (PT. 48)134; UTTEH VS. STATE (1992) 2 SCNJ (PT. 1)183.

He further submitted that the evidence relied upon by the prosecution to prove its case against the Appellant before the lower Court was full of material contradictions which should not be relied on. It is Counsel’s further submission that there is no credible evidence on record to link the Appellant with the use of offensive weapons and urged us to hold that the allegation of armed robbery was not proved. He cited the cases of ALO VS. THE STATE (2015) 9 NWLR (PT. 1464)238 AT 251; AWOPEJO VS. THE STATE (2001) 18 NWLR (PT. 745)430; EFFIA VS. THE STATE (1999) 8 NWLR (PT. 613)1; IBE VS. THE STATE (1992) 5 NWLR (PT. 244)129 in support.

On the extra judicial statements of the Appellant tendered and admitted in evidence as Exhibits J and K, learned counsel said they were not written down in the language they were made by the Appellant. He argued the statements should have been written down in Yoruba Language in which it was made and not English Language.

Relying on the cases of NSOFOR VS. THE STATE (2005) ALL FWLR (PT. 242) 397; OJEGELE VS. THE STATE (1988) 1 NWLR (PT. 71) 414;

NWACHUKWU VS.THE STATE (2007) 17 NWLR (PT. 1062) 31; AND OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746) 793 AT 800. Counsel urged us to hold that the Statements of the Appellant were wrongly admitted in evidence by the lower court.

On the charge of Conspiracy, Appellant’s Counsel submitted that no sufficient evidence was adduced by the prosecution to prove it. He therefore urged us to resolve this issue in favour of the Appellant.

For his part, learned Counsel for the Respondent stated the settled position of the law on the ingredients to be proved to secure a conviction for the offence of conspiracy. He relied on the cases of JUA VS. THE STATE (2010) 2 SCM 68 AT 70; NWOSU VS. STATE (2004) 15 NWLR (PT. 897); BELLO VS. THE STATE (2010) 12 SCM (PT. 2)28 AT 34.

On the complaint of the Appellant that the complainant was not called as a witness, learned Counsel relied on the provisions of Section 39 of the Evidence Act which deal with admissibility of statement made by a person who is dead or cannot be found or whose attendance cannot be procured without unreasonable delay or expense to submit that since the prosecution has shown that the complainant could not

be found, his statements to the police were rightly admitted in evidence as Exhibits D1, D2 and H respectively. He also relied on the evidence of PW2 to wit: that when the police went back to the village, it had become deserted.

He submitted further that Exhibits D1, D2 and H corroborate the confessional statements of the Appellant and urged us to hold the statements were rightly admitted in evidence. On the submission of Appellant’s Counsel that the prosecution’s case was full of contradictions, he submitted that it is only material contradictions that would affect the case put forward by the prosecution. He cited the case of MICHAEL EBEINWE VS. THE STATE (2011) 3 SCM 46 AT 47; NDUKWE VS. STATE (2009) 2 SCM 147 AT 150; MUSA VS. THE STATE (2013) 3 SCM 79 AT 93; ATTAH VS. STATE (2010) 5 SCM 57 AT 60 in support.

On the extra judicial statements made by the Appellant, Exhibits F and K, Respondent’s Counsel submitted that even though the Appellant retracted same at the trial, the lower Court was right when it admitted them in evidence and relied on them.He submitted the Court tested the veracity of the statements before admission and urged us

to hold it was right to convict the Appellant on his confessional statements.

The Appellant filed an Appellant’s Reply Brief of Argument. It is trite that the purpose of a Reply Brief is to proffer answers to new points of law raised in the Respondent’s Brief of Argument. It is not meant to be an opportunity for the Appellant to have another bite at the cherry, or fine tune, or expand arguments already contained in his substantive Brief of Argument. Anything to the contrary, makes the Reply Brief incompetent and would be discountenanced. See ANYASODOR VS. STATE (2018) 8 NWLR (PT. 1620)107; IDAGU VS. THE STATE (2018) LPELR- 44343 (SC) AT 30-31, PARAS. E-A; AND GODSGIFT VS. THE STATE (2016) 13 NWLR (PT. 1530)444.
I have carefully perused the Appellant’s Reply Brief and I find it to be a mere rehash of arguments already canvassed in the Appellant’s Brief of Argument. It falls short of the standard of what a reply brief should be. The Reply Brief filed on behalf of the Appellant is therefore discountenanced by me.

Section 138(1) of the Evidence Act, Laws of the Federation of Nigeria 2004 provides that the standard of proof in a

criminal trial is proof beyond reasonable doubt while Section 138 (2) and (3) place the burden to so prove on the prosecution.The burden does not shift. See BALOGUN VS. THE STATE (2018) 13 NWLR (PT. 1636) 321; OLADEJO VS. THE STATE (2018) 11 NWLR (PT. 1630) 238; DAUDU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1626)169; AMALA VS. THE STATE (2004) 12 NWLR (PT. 888) 520.

See UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346; BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465; AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619.

In Count 2 of the charge, the Appellant is alleged to have committed the offence of armed robbery. The prosecution did not call the victim of the alleged crime to testify throughout the proceedings at the lower Court. Learned Counsel to the Appellant in the Appellant’s Brief of Argument argued that the evidence of PW1 on the offence of armed robbery is hearsay evidence because it is a recap of what the complainant told him. The law is settled that evidence of a statement made to a witness by a person who is not called as a witness may or may not constitute hearsay. It is hearsay if the object of such

evidence is to establish the truth of what is contained in the statement. It is however not if the intent is to establish not the truth of the statement but that it was made. See OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746)793; UTTEH VS. THE STATE (1992) 2 NWLR (PT. 223)257; AROGUNDADE VS. THE STATE (2009) 6 NWLR (PT. 1136)165.
The question now is whether the evidence of PW1 on what the complainant who was the victim of the offence told him constitutes hearsay evidence. I do not think so.
What PW1 did was to narrate the information given to him and his colleagues at the locus criminis which preceded information given to him by the complainant on the escape route taken by the armed robbers. It is significant to note that the truth of the statement of PW1 was not tested under cross-examination even though the Appellant had the opportunity to so do. The evidence of PW1 was to show that the complainant gave information to the vigilantes which led to the arrest of the co-accused. It was not meant to establish the truth of whether or not the Complainant was strangled by the robbers and subsequently robbed of his money. I hold that the evidence of PW1 on this

point is admissible.

On the first ingredient of the offence of armed robbery which is whether there was a robbery, the learned trial Judge in his judgment at page 83 of the Record held thus:
“However, though the prosecution did not call the complainant to testify, his statement to the police is Exhibit D1. In Exhibit D1, the complainant stated that at about 1am on 06/11/2012, he was asleep with his wife and junior brother (Sunday Debue) in his room when suddenly, Sunday Debue opened the door to about 5 men all blindfolded and armed with a local gun and cutlasses. He stated that one of them held him by the neck while others aimed for the box where he kept N300,000, carefully opened it and went away with the money. Exhibit D1 further buttresses the fact that the complainant was attacked by men who were armed with gun and dangerous weapons.”

Section 39 of the Evidence Act 2011 provides as follows:
“Statements whether written or oral of facts in issue or relevant facts made by a person-
(a) Who is dead;
(b) Who cannot be found;
(c) Who has become incapable of giving evidence; or
(d) Whose attendance cannot be procured

without an amount of delay or expense which under the circumstances of the case appears to be unreasonable, are admissible under Section 40 to 50.”
There is evidence from PW2 under cross-examination that all villagers resident at Asaidu village (the locus criminis) fled when they heard Policemen were coming. The provisions of Section 39(b) of the Evidence Act 2011 is applicable in the circumstance and I so hold. In P.C. ADEUSI ADESINA VS. THE PEOPLE OF LAGOS STATE (2014) WRN/SC. 622, the Supreme Court, per Eko, JSC held thus:
“These facts satisfy the procedure adopted by the trial Court by which it is permitted of the PW1, the IPO, tendering exhibit D3 (even though he is not the maker) as part of his investigatory function. The procedure is sanctioned by Sections 39(d) and 41 of the Evidence Act. Exhibit D3 is therefore a legal evidence that can corroborate another legal evidence. This Court, approving of this procedure in Ehot v. State (1993) 5 SCNJ 65; (1993) 4 NWLR (Pt. 290) 644, held that a medical report can be tendered and admitted in evidence through the IPO, and relied upon without calling the medical doctor who prepared it. The

general rule enunciated in Subramanian v. Public Prosecutor (1956) 1 WLR 956 at 969 cited with approval in Odogwu v. State (2013) 38 WRN 17; (2013) 14 NWLR (Pt. 1373) 74 at 103 that “evidence of a statement made by a person who is not himself called as a witness may or may not be hearsay” has its limitations. Sections 39(d) and 41 of Evidence Act have contracted the scope of the rule.”
Exhibit D1 is thus an extra-judicial statement on facts relevant to the case made by the complainant who can no longer be found. It is admissible evidence pursuant to Section 39(b) of the Evidence Act 2011 and I so hold. It is evidence that can be used to corroborate legal evidence.

The document Exhibit D1 was tendered by PW2 who was the investigating police officer (IPO). The law is that evidence discovered by an investigating police officer in the course of investigation is positive and direct evidence. See KAMILA VS. THE STATE (2018) 8 NWLR (PT. 1621) 252 AND OLAOYE VS. THE STATE (2018) 8 NWLR (PT. 1621)281.
The statement made by the complainant who was the victim of the offence to PW2 in the course of investigation which was tendered and admitted in

evidence as Exhibit D1 constitute positive and direct evidence that there was a robbery and that the robbery was armed robbery.

On whether the Appellant took part in the armed robbery, the learned trial judge at page 87 of the Record held thus:
“The 1st accused in Exhibits F & K had stated that the complainant, Kodjo Debue is his sister’s son; that Sunday Debue is the younger brother of the complainant; that the 2nd accused is from Cotonou like them; and that he knew the late Olajide Kassim. He stated that it was Sunday Debue that came to inform him that the complainant was with the monthly contribution of their members to the tune of N1 million and said they should arrange to steal the money. He stated that Sunday Debue offered to go and sleep in the house of the complainant and thereby open the door to the 1st accused and the other robbers. The 1st accused stated that he then called on Olajide and the 2nd accused to join him to do the job.
He narrated how they went to the house of the complainant, all masked, how Sunday Debue had opened the door even before they got there, how they were armed with 2 Dane guns and how the

complainant and his wife raised an alarm which made him to flee into the bush. According to him, it was later that he got to know that Olajide Kassim and the 2nd accused were arrested. He stated that it was his first attempt at robbery and that eventually, he did not know which member of their gang carried the money which they set out to steal.”

Exhibits F and K are extra-judicial statements made by the Appellant to the Police. I have gone through the two statements and I agree with the trial Judge that the Appellant acting on information given to him by Sunday Debue in liaison with one Fabu Koku and Olajide Kassim (deceased) agreed to rob the complainant KodjoDebue.

Learned Counsel to the Appellant further urged us to hold that Exhibits F and K did not pass the critical test of being true, positive and direct. His contention is that the two statements should not have been admitted in evidence because there is nothing ex facie to show they were read and interpreted to the Appellant before he thumb printed. He craved in support the cases of PETER VS. THE STATE (1997) 12 NWLR (PT, 531)1 AND FATILEWA VS. THE STATE (2008) 12 NWLR (PT. 1101)518. These two

cases relied upon by Counsel in support of his position have no bearing whatsoever to the argument of Counsel. In the case of FATILEWA VS. THE STATE (SUPRA) the Supreme Court was called upon to determine whether the statement of the 1st Accused Person narrated to a Police Officer (PW5) can be used as evidence to convict the 2nd Accused Person. It was held that admission made by an Accused Person cannot be used as the basis to convict his co-accused who did not admit the offence. The issue of the language in which the Statement was made and recorded did not arise at all in that case.

In the second case of PETER VS. THE STATE (SUPRA), what the Supreme Court was called upon to determine was whether the defence of alibi would avail the Accused Person. It had nothing to do with the admissibility of extra judicial statement of the accused person.

The cases of FATILEWA VS. THE STATE (SUPRA) AND PETER VS. THE STATE (SUPRA) have no bearing at all to admissibility of statements of an accused person. They are thus irrelevant to the issue at hand.

Now to the resolution of the complaint of the Appellant that Exhibits F and K were not recorded in Yoruba Language

which is the language it was made. While it is desirable that an extra judicial statement should be recorded in the language in which it was made by the accused person before it is translated into English, failure to record in vernacular would not render the English translation inadmissible. See THE QUEEN VS. OMEREWURE SAPELE & ANOR (1957) SCNLR 307; AND AJIDAHUN VS. THE STATE (1991) 9 NWLR (PT. 213) 33. In OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746)793, the Supreme Court, per Onu, JSC held thus:
“This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See QUEEN VS. BABA HASKE (1961) 1 ALL NLR 330 AT 333.”
Consequently, I find the argument of Counsel that failure of the prosecution to tender the Yoruba version of the Appellant’s Statement was fatal to its case to be of no moment. The conclusion of the trial judge on this issue is unassailable and I so hold.

Furthermore, Exhibits F and K were tendered and admitted in evidence without any objection from the Appellant. The law is settled that

where an extra judicial statement of an accused person is admitted without objection, it becomes part of the case of the prosecution and the Court is duty bound to consider it. Where an accused person did not contest the voluntariness of his statement, the confession therein is deemed to be an admission of guilt. See SANNI VS. THE STATE (2018) 8 NWLR (PT. 1622)412; MATTHEW VS. THE STATE (2018) 6 NWLR (PT. 1616)561.

the Court is satisfied with its truth. See THOMAS AKPAN EKONG VS. THE STATE (2013) All FWLR (pt. 685) 353; ODEH v. F. R. N (2008) 3 -4 SC 142″.
However, in EGBOGHONOME VS. THE STATE (1993) 7 NWLR (pt. 306) 383 It was held that:-
“Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such u-turn does not necessarily make the confession inadmissible.”
See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS. THE STATE (1984) 6 SC 85; EJINIMA VS. THE STATE (1991) 6 NWLR (Pt.200) 62: AKPAN VS. THE STATE (1992) 6 NWLR (Pt.248) 439 and AKINFE VS. STATE (1988) 3 NWLR (Pt.85) 729.”

The Appellant who did not challenge the admissibility of Exhibits F and K at his trial before the lower Court cannot come before us to do that. The statements Exhibits F and K constitute an admission of guilt on his part. The trial Court was therefore right when it acted on it as part of the credible

evidence presented by the prosecution. An attempt was made by the Appellant at his trial to retract the confessions contained in Exhibits F and K.The law is settled that such retraction does not make the statements unreliable.Once the statement is admitted in evidence, the trial court has a duty to determine the weight to be attached to it.It is however desirable in such circumstance that the confessional statement be corroborated by some evidence outside it.See FABIYI VS. THE STATE (2013) 18 NWLR (PT. 1490)80; SULE VS. THE STATE (2009) 17 NWLR (PT. 1169)33; OSETOLA & ANOR VS. THE STATE (2012) 17 NWLR (PT. 1329) 251; MOHAMMED VS. THE STATE (2014) 12 NWLR (PT. 1421)387. In MUSA VS. STATE (2013) 9 NWLR (PT. 1359) 214 Peter-Odili, JSC held thus:
“Therefore, the fact that the appellant resiled from that Exhibit A, the confessional statement would not affect negatively the evaluation of the evidence plus that statement which when taken through the tests that qualifies a confessional statement to be used. In that vein, the judge would ask himself the following questions:
1. Is there anything outside the confession to show that it is true?

Is it corroborated?
3. Are the relevant statements made in it of facts, true as they can be tested?
4. Was the prisoner one who had the opportunity of committing the rape?
5. Is his confession possible?
6. Is it consistent with the other facts which have been ascertained and have been proved?
It needs be restated that this Court, the apex Court had decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be live is sufficient to support a conviction once it meets with the six point test stated above.”

The lower Court at pages 89-90 of the Record stated thus:
“I find that there are facts outside the confessions to show that they are true; and the confessions are corroborated. I also find that the accused persons being relations of the complainant, who had knowledge that he had a large sum of money in his home, had the opportunity of committing the crime. The 1st accused in Exhibit J had confessed that the complainant’s brother, Sunday Debue had informed him that the complainant being the treasurer of their association was in possession of the contribution of

N1million…”

Continuing further at page 90 of the Record, the trial Judge held thus:
“I find that there was a reason why the complainant was a target for robbery; there was an informant (Sunday Debue) inside the complainant’s house; and there were willing accomplices for the robbery. These facts make the confessions possible. I am also of the considered view that the confessions are consistent with other facts which have been proved.”

It is evident from all of the above that the learned trial Judge subjected Exhibits F and K to the verification test. The Court’s finding that the Appellant was one of those who robbed the Complainant at Asaidu village on 6th of November, 2012 cannot be faulted. There is no doubt the Prosecution proved the three ingredients of the offence of Armed Robbery beyond reasonable doubt and I so hold.

On the offence of conspiracy to commit armed robbery which is the subject of Count 1 of the charge, it is trite that Conspiracy is an agreement between two or more persons to do an unlawful act. It is a separate and distinct offence in itself, independent of the actual offence. The crime

of conspiracy is more often than not hatched in secrecy as such it may not always be an easy task to prove its commission by direct and distinct evidence.
It is not necessary to prove that the conspirators like those who murdered Julius Caesar were seen together coming out of the same place as they need not know each other to be adjudged as such. It is enough that the conspirators have communicated at any point. Once there is a meeting of the mind, there is conspiracy. It does not matter that one of the Conspirators renege, repent or developed a cold feet. See IBOJI VS. THE STATE (2016) 9 NWLR (PT. 1517) 216; OSARENREN VS. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1627) 221; AND HASSAN VS. THE STATE (2017) 5 NWLR (PT. 1557)1.
The instant Appellant stood trial at the lower Court alongside one Fabu Koku. They were both convicted of the offence of Conspiracy.
The judgment from which this appeal arose is the same as that in APPEAL NO: CA/IB/147C/2017, FABU KOKU VS. THE STATE delivered on 19th of July, 2019 now reported as (2019) LPELR – 48121 CA.
In FABU KOKU VS. STATE (SUPRA), I held as follows:
“With respect to the offence of

conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap Rule 11 Laws of the Federation of Nigeria 2004 charged in count 1, the lower Court at page 91 of the record held thus:
“I find in this instance that conspiracy can be inferred from Exhibits D1, F, G, H, J and K and the evidence of PW1 – PW3. I hold that the prosecution has proved beyond reasonable doubt that the 2 accused persons conspired with Olajide Kassim who is now late and Sunday Debue who is now at large to commit the offence of armed robbery on 06/11/2012.”
The Appellant in his statement, Exhibit G confessed that the complainant’s brother Sunday Debue (a.k.a. Yellow) informed him that his brother (the complainant) had a sum of one Million Naira in his house and invited him to join others to rob him. His statements contain detail direct evidence of how the conspiracy was hatched. He confessed that himself and others went to the house of the complainant to rob him based on the information given them by his brother. There is evidence of mutual agreement between the Appellant and others to carry out an unlawful

act to wit: to rob the complainant. I find no reason to disturb the findings of the lower Court that the prosecution proved the offence of conspiracy in count 1 of the charge against the Appellant beyond reasonable doubt. The finding is supported by evidence on record.”
I have no reason to depart from the above which I find also relate to the instant Appellant who was a co-accused to Fabu Koku and hold that the learned trial Judge was right when he held that the instant Respondent proved the offence of conspiracy to commit armed robbery against the Appellant beyond reasonable doubt.
Issue number one is resolved against the Appellant.

ISSUE NO: 2
”Whether the defence of alibi can avail the Appellant.”
Learned Counsel to the Appellant stated that the Appellant was not one of the suspects arrested at the scene of robbery and since none of the villagers was called to testify at the trial, any doubt on the defence of alibi should be resolved in favour of the Appellant. He said what the trial Court did was to rely on spurious and baseless confessional statements to fix the Appellant at the scene of crime.

Arguing per contra, learned counsel to the Respondent submitted the evidence from the prosecution witnesses fixed the Appellant at the scene of crime and urged us to so hold. He further submitted that the documentary evidence before the lower Court i.e. Exhibits D1, F, H and K show the Appellant was at the scene of crime and actively participated in the commission of the crime. He pointed out further that the Appellant raised the defence of alibi for the first time at his trial before the lower Court. He said he never raised it in his statements, Exhibits F and K. Relying on the cases of TONGO VS. C.O.P. (2007) 9 SCM 113 and OKOLO OCHEMAJE VS. THE STATE (2008) 10 SCM 103 AT 107. Counsel urged us to hold that the defence of alibi would not avail the Appellant.

Learned Counsel to the Appellant further urged us to consider the inconsistencies and contradictions in the evidence of prosecution witnesses on how the Appellant was apprehended.

It should be noted that inconsistencies and/or contradictions in the evidence of prosecution witnesses cannot be ruled out in the course of trial. An accused person would not however automatically derive benefit from such

inconsistencies unless they are substantial and fundamental to the main issue before the Court. In other words, they must be material to the issue at stake and go to the root of the case. Minor discrepancy or disparity in the evidence of prosecution witnesses will not avail an accused person. See AKINDIPE VS. THE STATE (2012) 16 NWLR (PT. 1325) 94; ASUQUO VS. THE STATE (2016) 14 NWLR (PT. 1532)309; GALADIMA VS. THE STATE (2018) 13 NWLR (PT. 1636) 357and IBRAHIM VS. THE STATE (1991) 4 NWLR (PT. 186)399.
The issue now is whether the prosecution proved that the Appellant was at the locus criminis on the date and at the time of the commission of the offence for which he was charged. PW3 is a Police officer attached to the State Criminal Investigation Department. His evidence under cross-examination is that his investigation revealed that the Appellant and others participated in the armed robbery. The Appellant in his statements Exhibits F and K admitted he was at the scene of the robbery and actively participated in the planning and commission. The discrepancies in the evidence of the prosecution witnesses on when the Appellant was arrested and when he was taken to

the Police Station are minor and not material to his participation in the alleged crime. They must be discountenanced as they do not go to the root of the matter before the trial Court and I so do.

Alibi simply put is a defence relied upon by an Accused Person to show he was elsewhere and not at the scene of crime at the material time the offence was committed. An Accused Person who seeks to rely on the defence must however provide accurate details of where he was at the time the offence was committed. He must present evidence from persons who were with him at the time. This is necessary to demonstrate that he was not in a position to commit the offence with which he was charged. The defence must be raised timeously or at the first opportunity with details to give the prosecution or police the opportunity to investigate to ascertain the truth or otherwise of the defence. The onus is on the defence to establish the alibi. If the prosecution adduces sufficient evidence to fix an accused person at the scene of crime his alibi is demolished. See SHEHU VS. STATE (2010) 8 NWLR (PT. 1195) 112; ADEWUNMI VS. STATE (2016) 10 NWLR (PT. 1521) 614; OSUAGWU VS. STATE (2013)

1-2 SC (PT. 1)37; EZEKWE VS. STATE (2018) 3-4 SC (PT. I)144; ADEKUNLE VS. STATE (1989) 5 NWLR (PT. 123)505 AFOLALU VS. STATE (2010) 16 NWLR (PT. 1220) 584; VICTOR VS. STATE (2013) 12 NWLR (PT. 1369) 465.
In this appeal, the alibi was raised by the Appellant for the first time during his evidence-in-chief at his trial when he stated that he was not at Asaidu village on the day the offence was committed. He also said he did not know Asaidu village. The defence of alibi was not timeously raised by the Appellant as required by a person seeking to rely on the defence and I so hold. The Appellant did not give details of where he was on the day the crime was committed and also did not call person(s) who were with him at the time the offence was committed to prove that he could not be at the scene of crime. More important is the fact that there is evidence on record fixing the Appellant at the scene of crime. The Appellant failed to discharge the burden on him. The defence of alibi cannot avail him and I so hold.
Issue No. 2 is also resolved against the Appellant.

From the totality of the evidence before the trial Court both oral and documentary, it is my firm

view that the trial judge was on a strong wicket when he held that the prosecution proved his case beyond reasonable doubt.

On the whole, I find this appeal completely devoid of merit. It fails and is accordingly dismissed. I affirm the judgment of the Ogun State High Court in Charge Nos. AB/4R/2015 delivered on 28th of February, 2015.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Folasade Ayodeji Ojo, JCA gave me the benefit of reading in advance the judgment just delivered.

My learned brother has comprehensively and admirably delved into and resolved all the issues that came upon for determination in this appeal. It is obvious from the evidence on record and the judgment of the trial Court, that the learned trial Judge was alive to his duty of evaluating and apportioning probative value to the evidence adduced at the trial. Having done that, the learned trial Judge rightly came to the conclusion that the prosecution proved its case beyond reasonable doubt.
On that note, I agree with my learned brother that this appeal lacks merit. It is accordingly dismissed.

NONYEREM OKORONKWO, J.C.A.: Notwithstanding that the victim of

the robbery was not called to testify, his statement Exhibit D1 constitutes evidence which agrees with Exhibit F and K which accounts of how the robbery was carried out. Together with other facts established, they establish the case against the appellant.
I agree with the lead judgment of Folasade Ojo JCA and the orders made.

Appearances:

R. Adeniji For Appellant(s)

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