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KUSHIMO v. STATE (2021)

KUSHIMO v. STATE

(2021)LCN/5061(SC) 

In The Supreme Court

On Friday, April 23, 2021

SC.317/2017

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Between

LUQMAN KUSHIMO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

WHAT IS REQUIRED IN PROOF OF A CRIMINAL OFFENCE

It is now well settled in law that, what is required in proof of a criminal offence including the armed robbery and conspiracy to commit armed robbery charge under discourse is that the essential ingredients of the offence are proved beyond reasonable doubt by the prosecution and it is not expected that the standard of proof is one beyond every shadow of doubt– PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

INGREDIENTS TO BE PROVED TO SUSTAIN THE CHARGE OF ARMED ROBBERY

It is a trite fundamental doctrine, that for the prosecution to succeed in sustaining the charge of armed robbery against an accused person, under Section 1(2)  (a) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria, 2004 (supra), it has the burden of proving beyond reasonable doubt the following ingredients:
(i) That there was an armed robbery or a series of armed robbery;
(ii) That the robbery was an armed robbery
(iii) That the accused person had participated in the commission of the armed robbery;
See, AGBOOLA VS. THE STATE (2013) NWLR (pt. 1366); (2013) LPELR-SC 434 2011 @ 26 paragraphs D-G; BOZIN VS. THE STATE (1985) 2 NWLR (pt. 8) 465 @ 467; ALABI VS. THE STATE (1993) 7 NWLR (pt. 307) 551, et al. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

INGREDIENTS THAT MUST BE PROVED TO SUSTAIN A CHARGE OF ARMED ROBBERY

It follows that to sustain a charge of Armed Robbery against the accused person, the following ingredients must be proved beyond reasonable doubt:
(a) That there was an armed robbery or a series of robberies
(b) That each of the robberies was an armed robbery
(c) That the accused was one of those who took part in the robbery or robberies.
I rely on Miller v Minister of Pensions (947) 2 All ER 372; Agboola V State (2013) 11 NWLR (pt. 1366) 619 at 173. – PER MARY UKAEGO PETER-ODILI, J.S.C.

PRINCIPLES GOVERNING CIRCUMSTANTIAL EVIDENCE TO SUPPORT CONVICTION

“It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent, and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence.” – PER MARY UKAEGO PETER-ODILI, J.S.C.:

RULES GUIDING RETRACTION OF A CONFESSIONAL STATEMENT AND HOW TO DECIDE THE WEIGHT TO BE ATTACHED TO IT

A retraction of a confessional statement by an accused person does not render such statement void.

Rather, it is settled principle as laid down by this Honourable Court that the weight to be attached to a Confessional Statement, whether or not retracted, be applied as in Nwaebonyi v The State (1994) 5 NWLR (Part 343) 138, held thus;
“In R. v. SYKES (1913) 8 CR App Rep.233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in KANU v. THE KING(1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as DAWA v. THE STATE (1980) 8-11 SC 235; THE QUEEN V. OBIASA(1962) 1 ALL NLR 651; (1962) 1 SCNLR 137; OBOSI V. THE STATE (1965) NMLR 129 and ONOCHIE V. THE REPUBLIC (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are there relevant statements made in it of facts true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder? (where it is a case of murder)
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
See also NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292; OJEGELE V. THE STATE (1988) 1 NWLR (PART 71) 414; NWACHUKWU v. THE STATE (2007) 17 NWLR (PART 1062) 31 – PER MARY UKAEGO PETER-ODILI, J.S.C.:

A confessional statement, once it’s duly established to be free, voluntary, direct and positive, is quite sufficient to sustain a conviction. However, the Court is required to, first and foremost, test the veracity (truth) of the confession before acting thereupon, thus, once the Court comes to the inevitable conclusion that the confession is true, the confessional statement alone is sufficient to ground and support a conviction without corroboration. Albeit the veritable test for determining the veracity of confessional statement, is to seek any other extraneous evidence, no matter how slight, of circumstances which render it probable that the confession is indeed true. See ALARAPE VS. THE STATE (2001) 5 NWLR (Pt. 705) 79 @ 98 Paragraphs F-G; ACHABUA VS. THE STATE (1976) 12 SC. (Pt. 63) 68-69. – PER MARY UKAEGO PETER-ODILI, J.S.C.:

PRINCIPLES GUIDING IDENTIFICATION PARADE

The essence of identification parade under the rules of criminal procedure and practice, cannot be overemphasized. Identification parade is required when the identity of the suspect is in doubt, most especially where:
(i) The offence was committed in the dark and the victim only had a fleeting encounter with the robber,
(ii) It is clear that the victim was traumatized in the course of the commission of the crime,
(iii) The eyewitness or victim fails at the earliest opportunity to name the person known to him. Who he claims committed the crime.
However, where the victim of the crime or witness promptly identifies the suspect, there would be no need for an identification parade. See OSUAGWU VS. THE STATE (2013) LPELR-19823 (SC) Per Rhodes-Vivour, JSC @ 18 paragraphs B – F.
The law is well settled, that where is good and cogent evidence linking the defendant (accused person) to the crime on the day of the incident, then a formal identification becomes quite unnecessary. See AFOLALU VS. THE STATE (2010) 16 NWLR (Pt. 1220) 584 PER Adekeye, JSC @ 616 paragraph A. THOMAS VS THE STATE (2017) 9 NWLR (Pt. 1570) 230 @ 256 paragraphs G-H; et al. “-PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C

In respect to the question of the irregular identification and the need for an identification parade which the appellant posed. I shall rely on the case of Afolalu v The State (2010) 16 NWLR (Pt. 1220) 584 at 616 per Adekeye, JSC in which he held thus:-
“identification parade is not obligatory, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary”

Similarly, in Thomas v State (2017) 9 NWLR (part 1570) 230, 256 G-H the Supreme Court per Kekere-Ekun, J.S.C:
“It is not in every case that an identification parade is necessary to identify a person accused of committing a crime. The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial Court on the evidence adduced for that purpose. – PER MARY UKAEGO PETER-ODILI, J.S.C.:

WAYS OF ESTABLISHING THAT AN OFFENCE HAS BEEN COMMITTED IN CRIMINAL TRIAL

The position of the law is settled that in a criminal trial, there are three ways of establishing that an offence has been committed, to wit:
(a) by direct evidence of an eyewitness; or
(b) by circumstantial evidence; or
(c) by confessional evidence of the accused person.
See F.R.N. vs Barminas (2017) 15 NWLR (pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (pt. 1575) 126.
The Court can safely convict an accused person where it is convinced that the prosecution has sufficiently employed any of these modes to prove the guilt of the accused. – PER JOHN INYANG OKORO, J.S.C.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is consequent upon the judgment of the Court of Appeal, Ibadan Judicial Division delivered on October 28th, 2016, in appeal No. CA/IB/227/2015. By the judgment in question, the Court below affirmed the judgment of the High Court of Ogun State, holden at Abeokuta, delivered on December 18th, 2014, in charge No. AB/2R/2013, thereby convicting and sentencing the Appellant and one other person to death by hanging for the offences of conspiracy to commit robbery and armed robbery, punishable under Sections 6(b) and 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS
On July 17th, 2013, the Appellant and one other person were arraigned before the trial High Court upon a four count information – viz:
COUNT I
STATEMENT OF 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 R11) Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
​LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large, on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed Rukayat Ajayi of Three Hundred and Fifty Thousand Naira (N350,000.00) and her mobile phones.
COUNT III
STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Zainab Ahmed of her Nokia mobile phone.
COUNT IV
STATEMENT OF OFFENCE
ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Taiwo Adekoya of his three mobile phones.

The Appellant pleaded not guilty to the 4 count charge read and explained there to in Yoruba Language. The charge proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the following conclusive effect:
It is evidently clear that the 1st and 2nd accused persons conspired with one Morufu who is at large to rob PW1, PW2 and others of their belongings on the 16/09/2010. I hold that they are guilty of the offence of conspiracy in count I.
In the final analysis, I find the prosecution has proved all four counts against the accused persons. I hereby find the accused persons guilty as charged. They are hereby convicted on all four counts of the information.

Accordingly, the trial Court proceeded, in the absence of an allocutus, to pass sentences upon the Appellant and co-convict:

SENTENCING
By law, the punishment for the offences of conspiracy to commit armed robbery, and armed robbery in counts I-IV of this information and for which the accused persons have been charged, tried and found guilty is a mandatory one over which I have no discretion to exercise.
Accordingly, on count I, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead. On counts II-IV, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead.

Not unnaturally, the Appellant has been utterly dissatisfied with conviction and sentences passed thereupon by the trial Court, thus appealed to the Court below. On October 28th, 2016 the Court below delivered the vexed judgment to the conclusive effect:
Although, learned counsel for the Appellant did not specifically challenge the finding of the trial Judge on the count of conspiracy, there is no doubt from the confessional statement that the three culprits formed a common intention or agreement to effect an unlawful purpose, to wit armed robbery. They did not act individually but in pursuance of a common purpose to commit armed robbery. The actual commission of the offence provided evidence of their common intention…
Having resolved the sole issue against the appellant, I hold that this appeal lacks merit. It is hereby dismissed. I affirm the judgment of the lower Court.

With a view to exhausting the right of a further appeal accorded thereto under the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Appellant has deemed it expedient to institute the present appeal. On January 28th, when the appeal came up for hearing, the learned counsel had the opportunity to address the Court and thereby adopted the argument contained in the respective briefs thereof. Thus, resulting in reserving judgment.

The Appellant’s brief, settled by Mutalubi Ojo Adebayo Esq. on 06/02/2018, spans a total of 16 pages. At page 3 thereof, a sole issue has been formulated:
Whether by the nature of evidence on the record, the Justices of the Court of Appeal rightly affirmed the conviction and sentence of the Appellant by the trial Court in holding that the prosecution has proved its case against the Appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

The argument of the Appellant’s learned counsel in a nutshell, is to the effect that the offence was allegedly committed in the night around 7pm. And that Appellant was not arrested at the scene of crime. The record does not bear the source of the purported information, based on which the Appellant was arrested.

It was submitted, that the Appellant had denied Exhibits P10 and 12 – the confessional statement. The evidence of PW1 under cross-examination was copiously referred to, to the effect that the PW1 saw the Appellant (2nd Accused person) for the first time in her life-time at the police station at Ibara. Thereby, rendering the said Exhibits P10 and P12 the confessional statement impossible and doubtful. See, NWABUEZE VS STATE (1988) 7 SCNJ 248, 257, 258; ANI VS. STATE (2009) ALL FWLR (pt. 482) 1044, 1062. KASA VS. STATE (1994) 5 NWLR (pt. 344) 269 @ 286 paragraphs C-H.

​Further agued by the learned counsel, that once the victim of robbery says he saw the person that robbed him and can identify that person, identification parade becomes necessary, and must be conducted. See BOZIN VS. STATE (1985) NNCL VOLUME 16 (part II) 1087 at 1092 lines 40 – 45.

It was posited, that the prosecution’s case is fraught with doubt, as a result of material contradictions or lack of sufficient evidence. See IBEH VS. THE STATE (1997) 1 NWLR (pt. 484) 632 at 650; ONUOHA VS. THE STATE (1988) 8 – 11 236, et al.

The case of EDIBO VS. STATE (2007) A FWLR (pt. 384) 192 at 207 paragraphs C-D was also cited and relied upon, to the effect that the Appellant can be given the benefit of any defence available to him.

Thus, it’s vehemently posited, that for the charge of conspiracy to commit armed robbery to be sustained, certain elements must be established by the prosecution beyond reasonable doubt. See, AFOLALU VS. THE STATE (2010) 16 NWLR (pt. 1220) 584; (2010) LPELR-197 SC 26 paragraphs A – F; SANI VS. THE STATE (2015) 6-7 (pt. 11), @ 17-78, et al.

​Conclusively, the Court is urged upon to resolve the sole issue against the Respondent, upturn the verdict of acquittal and discharge in favour of the Appellant.

Contrariwise, the Respondent’s brief, settled by Adekolapo Ilorin, Esq. on 25/04/2018, spans a total of 19 pages. At page 4, the learned counsel has deemed it expedient to distil a sole issue from ground 2 of the Appellant’s notice of appeal:
Whether from the entirety of the evidence on Record, as well as material available, the conviction of the Appellant for the offences, of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

The pith of the Respondent’s submission, is that the combination of the evidence of PW1, PW2, PW3, PW4 and Exhibits P1-P11 gives credence to the fact that there indeed was an armed robbery on 16/11/2010 at No. 62, Sabo Road Abeokuta.

It was argued, that the said gun pointed at the PW1 was one of the locally made guns (Exhibits P6 and P7) recovered from the scene of arrest of the DW2, the accused. Further argued, that Exhibits P10 and P12 both give credence to the fact that the accused was one of those who took part in the crime.

​According to the learned counsel, a confessional statement, without more, is enough to sustain a conviction. See ACHABUA VS. THE STATE (1978) 12 S.C. (pt. 63) 68-69.

It was equally submitted, that no defence of alibi was raised at the trial. And long after the Appellant was arrested, he was unable to adduce any evidence to support the defence that he was somewhere else on 16/09/2010 at the time of the incident. See ESSIEN VS. THE STATE (2013) LPELR-20749.

It is posited, that the prosecution has proved beyond reasonable doubt that the Appellant was at the scene of the crime on 16/09/2010. That this has been successfully established by the direct evidence in Exhibits p10 and p12, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4. See ONAH VS. STATE (1985) 3 NWLR (pt. 12) 236, 244 paragraphs C-D; AKINBISADE VS. THE STATE (2006) 17 NWLR (pt. 1007) 184, 212 paragraphs A-B, et al.

​On the whole, the Court is urged to hold, that from the foregoing, the evidence, both circumstantial and confessional, is not just cogent, but complete and unequivocal that no other conclusion ought to be inferred than that the Appellant was not only at the scene of the crime on the day of the incident, but that he also committed the offences for which he was convicted.

I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in their respective briefs vis-a-vis the record of appeal as a whole. I would want to think and hold, that the sole issue distilled by the Appellant from the two grounds of the notice of appeal is very much germane to and apt for the determination of the appeal itself. Thus, I have deemed it most apt to adopt the sole issue with a view to determining the appeal, one way or the other.

DETERMINATION OF THE APPEAL
As copiously alluded to above, the sole issue for resolution raised the very vexed question of whether or not by the nature of the evidence on record, the Court below rightly affirmed the conviction and sentence of the Appellant by the trial Court on the ground that the prosecution has proved its case against the Appellant beyond reasonable doubt.

​It is a trite fundamental doctrine, that for the prosecution to succeed in sustaining the charge of armed robbery against an accused person, under Section 1(2)  (a) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria, 2004 (supra), it has the burden of proving beyond reasonable doubt the following ingredients:
(i) That there was an armed robbery or a series of armed robbery;
(ii) That the robbery was an armed robbery
(iii) That the accused person had participated in the commission of the armed robbery;
See, AGBOOLA VS. THE STATE (2013) NWLR (pt. 1366); (2013) LPELR-SC 434 2011 @ 26 paragraphs D-G; BOZIN VS. THE STATE (1985) 2 NWLR (pt. 8) 465 @ 467; ALABI VS. THE STATE (1993) 7 NWLR (pt. 307) 551, et al.

In the instant case, with a view to proving its case against the Appellant, the prosecution had called a total of four witnesses who testified as PW1, PW2, PW3 and PW4, respectively. The prosecution had equally tendered a total of 13 exhibits – Exhibits P1 – P13, respectively.

The PW1 was in the person of Rukayat Ajayi, a trader of No. 14 Osho Majiyagbe, Adigbe, Abeokuta. The evidence of the PW1 is contained at pages 53-54 (examination-in-chief) and 54-56 (cross-examination) of the Record of Appeal.

In a nutshell, the examination-in-chief of the PW1 is to the effect, inter alia, that on 16/09/2010 at about 7pm, she was at her shop and a consignment of rice and oil was being offloaded for her:
“Then, I saw the 1st accused person was holding a gun and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter to lie face down and he asked me to bring out my bag, that in case I hesitated, he would shoot my daughter. I looked around and saw that the 1st accused has entered the 3rd shop to mine and was ordering the people there to keep their mouths shut. Out of the fear that they should not kill my daughter and with the memory that my mother also died from an armed robbery attack; I released my bag to that 3rd person… I was shouting and screaming and crying while they were being pursed (sic).”

Under cross-examination by the defence counsel, the PW1 stated inter alia:
“At the police station, Ibara, I identified the 2nd accused (who was arrested) as one of the robbers that came to my shop. I saw the 2nd accused for the 1st time in my life at the police station. I had never seen him before then… I was not at the scene when the 2nd was apprehended, I met him at Ibara police station. The accused persons robbed me.”

The PW2, Zainab Ahmed gave evidence to the effect, inter alia:
“I recollect that on 16th September, 2010, at about 7pm, myself and my mother were sitting at 2 different tables in front of our shop. The people that came to offload goods for us were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate with him because he is “Jegun jera” (someone who eats the meat along with the bone), failing which he would try his gun on me. He said all he needed was her bag and that he was not holding a toy gun. I looked around and saw that another man with gun holding the people in the 3rd shop to ours hostage… There were three men that came to robbery operation.”

Under cross-examination, the PW2 maintained that she was told by the robber to face down:
“It was only at the point of collecting my phone that they requested me to look up again. I went to Ibara police station the next day to only make statement.”

​The PW3, Ogunleye Idowu, was woman police sergeant No. 021457 attached to the Ogun state CID Anti-Robbery section, Abeokuta. According to the PW3:
“The 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with a case file and exhibit (2) Locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle. I identify the exhibits now.”

The said items having been identified by the PW3, they were accordingly admitted by the trial Court as exhibits P2, P3, P4, P5, P6 and P7, respectively. An application and Bond paper for the release of the motorcycle to Oladeinde Akeem (the alleged owner thereof) were equally identified by the PW3 and accordingly admitted by the trial Court as exhibits 8 and 9.

It was equally stated by the PW3 that accused persons were allegedly thoroughly beaten and injured by a mob:
“After they had been treated and I saw that they were in good condition to make statements. I rearrested, charged and cautioned of accused one after the other in English and they volunteered their statements also in English Language which I recorded … They signed as the maker which I signed as the recorded. The statements being in nature, took the 2 accused persons before my superior officer, ASP SP Fola Ogunkoya (now deceased). In my presence, the statements were read over to the accused persons in English language by my superior and they confirmed them to be their statements. My superior endorsed the statements, the accused persons signed and I also signed as the IPO. I now identify the statements of the accused persons.”

Having been so identified by the PW3, the statement of the 1st accused (Appellant) was admitted by the trial Court as exhibit P11.

Under cross-examination by the defence counsel, the PW3 maintained that he could not remember how many days after the case file was transferred that they visited the scene of crime.

​The PW4, was Akeem Salami police Sgt No-205956. He testified to the effect that on the said 16/09/2010, he was on duty at Ibara Divisional police HQS at about 23:15hrs, when a case of conspiracy and armed robbery was reported and referred to him for investigation. It was in the course of that investigation that he rearrested the 1st and 2nd accused persons. He also found two locally made pistols, one live cartridge and one expended one on the 2nd accused person. He charged and cautioned both accused persons and recorded their respective statements. However, the confessional statements being confessional had to be confirmed and duly endorsed by a senior police officer in the person of DSP Jacob Olayemi. The confessional statements of the 1st and 2nd accused persons were identified by the PW4 and accordingly admitted by the trial Court as Exhibits 12 and 13 respectively. The PW4 equally identified Exhibits P2-P7 respectively.
Under cross-examination by the defence counsel, the PW4 maintained thus:
“The 2nd accused person was arrested on the 16th September, 2010. He was brought to me and I rearrested him. I set my eyes on the 2nd accused for the 1st time at Ibara police station. It was a group of person that brought the 2nd accused to the station that also brought 2 locally made pistols, one live cartridge and one expended cartridge to the statement. One cutlass and one knife were found on the 1st accused upon his arrest at laderin on the 21st September, 2010. All that I told the Court is all I did in respect of this case except that a police officer, I am on the lookout for the co-suspect who is at large.”

​Consequent, upon the testimony of the PW4, the prosecution deemed it expedient to close its case. Thus, the Appellant opened the defence thereof on 21/12/2014 as DW1. The Appellant (as 1st Accused person) testified in examination-in-chief that prior to his incarceration in the prison, he was living at Odemo village in Adigbe where he worked as a bricklayer.

On the 16/09/2010, in question he went to his working place somewhere behind the mechanic village at Kobape and returned home at 6.30pm and slept. According to the Appellant:
“On the 17th and 18th, I also went to work and returned on 19th was Sunday and I did not go to work. On Monday 20th I was weak and did not go to work. It was on the 21st September, 2010, that I went to work again at the same site of Kobape I rode a commercial motorcycle I noticed a crows shouting. I then asked the motorcyclist not to leave yet in order for me to find out what was happening. The motorcyclist waited while the noise confirmed. About five minutes later, a bus drove in and some mobile policemen alighted from it people started to run away. I stood there with some people. That was how those of us standing there (including the motorcyclist) were arrested and driven away to somewhere near trade fair complex. Their the mopol informed their boss of our arrests. The boss inquired if anything was found in our possession and they answered in the negative. The boss ordered that we be taken to the police station at Ibara.

Conclusively, the Appellant stated in his examination-in-chief thus:
“When I was taken to the State SCID, I was already seated in car when another man was brought to join me in the car. He is the and accused person… It was Exhibits P12 that the police men thumb printed my thumb on involved in any act of armed robbery.”

Under cross-examination by the prosecution the Appellant stated:
“It was where I went to work on the 21st September, 2010, that I was arrested… of his were arrested- myself, the motorcyclist, one other bricklayer and another person. The 2nd accused was not one of those arrested with us on that day.

​Against the backdrop of the circumstances surrounding the instant case vis-a-vis, the totality of the evidence adduced at the trial, there is every cogent reason for me to uphold the concurrent findings of the trial Court and the Court below, to the effect that there was a robbery incident on September 16th, 2010 at No. 62 Isabo Road, Abeokuta, Ogun State, thereby establishing the 1st ingredient of the offence of armed robbery beyond reasonable doubt under Section 1(2)(a) of the Armed Robbery And Fire Arms (Provisions) Act Laws of the Federation of Nigeria, 2004 (Supra).

It is not at all controversial, as amply established by the prosecution vide the PW1 and PW2, that on the said 16/09/2010, at about 7pm while the PW1 and PW2 were seated outside their shops and goods were being off-loaded thereinto, the Appellants and two other persons who were armed with guns invaded their shops and robbed them of their belongings. Most particularly, the PW1 was robbed of her hand bang containing the sum of #350,000.00 (Three Hundred and Fifty Thousand Naira).

With particular regard to the 2nd and 3rd ingredients of the offence, whether the robbery was armed robbery properly so called, the evidence of the PW1 is to the effect that:
PW1:
“On the 16th September, 2010, at about 7pm I was at my shop and a consignment of rice and oil was being offloaded for me. Then I sand the 1st accused person (Appellant) was holding a gun (sic) and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter (PW2) to lie face down and he asked me to being out my bag that in case I hesitated he would shoot my (PW2). Looked around and saw that the 1st Accused (Appellant) has entered the 3rd shop to and was ordering the people there to keep their mouth shut.
… the 3rd person requested for the phones of those lying down and he collected them after taking my bag.”
The testimony of the PW2 is largely corroborative of the evidence of the PW1; the fact that the PW1 had stated under cross-examination that she had seen the 2nd accused person at Ibara Police Station for the first time in her life, notwithstanding!

​The PW1 was most particularly emphatic that the Appellant (1st Accused Person) had actively participated in the armed robbery incident in question. Thus, the PW1 was specific and unequivocal in regard to the role actively played by the Appellant and the two other persons in the commission of the armed robbery on that day and time in question. As aptly found by the trial Court at page 112 (lines 1 – 18) of the Record:
“PW1 said that 1st accused was on standby on a motorcycle, the 2nd accused was holding a gun and the 3rd accused held a gun, pointed it directly at her and requested for her bag … PW 1 was called on the phone that one of the robbers had been caught and she went over to the scene where he was apprehended. By the time she got there, they moved him to Ibara Police Station. Their she met the 2nd accused who was apprehended with a gun and she identified as one of the robbers that came to her shop that evening. PW1 also identified the 1st accused person in this Court as the person who was on standby on a motorcycle at the time of the robbery.”

Undoubtedly, the foregoing finding by the trial Court which was duly upheld by the Court below, is cogent, unassailable and duly supported by the evidence on record. It is a trite fundamental doctrine, an eyewitness account of the commission of any act, be it an offence (crime) or otherwise, is the best specie of evidence amenable to the Courts. See IMO VS. THE STATE (2001) 1 NWLR (Pt. 694) 314.

​It was the argument of the Appellant, at page 7 (paragraphs 6.00-6.04) of the brief thereof, to the effect:
[T]hat no identification parade was conducted in this case… [T]he purported identification of the Appellant by the 2nd accused person (sic) is no identification as it was rather strange and cannot take the place of the proper identification parade which under the law, is required in this case.

Instructively, the term ‘identification’ in criminal law, denotes the act or process of providing that a person charged with an offence and arraigned before a Court of law or Tribunal is the same person who actually committed that offense.
The term ‘identification’ is varied and ubiquitous: (i) DOCK IDENTIFICATION: refers to an in-Court declaration by an eyewitness to a crime that the defendant (accused person) in the dock was the person who committed the crime or was present at the scene of the crime. Also termed ‘in-Court identification’; (ii) EYEWITNESS IDENTIFICATION: This type of identification denotes a naming or description by which a person who has witnessed (seen) testifies from memory about the person or persons involved. For many years, Courts, especially in the USA, have recognized that eyewitness identification belongs to the league of the least reliable forms of evidence. Most particularly, DNA exonerations have proved that eyewitness identification is frequently inaccurate. See U.S. VS BROWNLEE 454 F. 3d. 131, 141-142 (3d, Cir, 2006); MEMORY CORRUPTION, which is thus an issue in regard to the accuracy of eyewitness identification. See BLACK’S LAW DICTIONARY 11TH Edition, 2019 @ 893-894, 1180.

The essence of identification parade under the rules of criminal procedure and practice, cannot be overemphasized. Identification parade is required when the identity of the suspect is in doubt, most especially where:
(i) The offence was committed in the dark and the victim only had a fleeting encounter with the robber,
(ii) It is clear that the victim was traumatized in the course of the commission of the crime,
(iii) The eyewitness or victim fails at the earliest opportunity to name the person known to him. Who he claims committed the crime.

However, where the victim of the crime or witness promptly identifies the suspect, there would be no need for an identification parade. See OSUAGWU VS. THE STATE (2013) LPELR-19823 (SC) Per Rhodes-Vivour, JSC @ 18 paragraphs B – F.
The law is well settled, that where is good and cogent evidence linking the defendant (accused person) to the crime on the day of the incident, then a formal identification becomes quite unnecessary. See AFOLALU VS. THE STATE (2010) 16 NWLR (Pt. 1220) 584 PER Adekeye, JSC @ 616 paragraph A. THOMAS VS THE STATE (2017) 9 NWLR (Pt. 1570) 230 @ 256 paragraphs G-H; et al.

What’s more, by virtue of Exhibits P10 and P12 (the Appellant’s confessional statements made at the Ibara police station and State CID Eleweran, respectively), there is every reason to believe that the Appellant had actively participated in the commission of the armed robbery in-question. Hear the Appellant (PW) in his own words:
“On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine, myself and Morufu have both robbed people on transit before, we both snatch bags from passerby of Adigbe area. When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan. I only go on operation with Morufu.
On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg. No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle. I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

Undoubtedly, the Appellant’s confessional statement (Exhibits P10 and P12) have been further corroborated by the evidence of the prosecution star witnesses, in the persons of the PW1 and PW2, copiously alluded to above. Thus, the active participation of the Appellant in perpetrating the armed robbery in question is not at all doubtful, notwithstanding the retracting of the said confessional statements by the Appellant in the eleventh hour!

Indeed, the doctrine is well settled, to the unmistakable effect, that a retraction of a confessional statement does not necessarily render such a statement void. That’s to say, a confessional statement does not become inadmissible merely because it is subsequently retracted by the maker thereof in the course of trial. See SOLOMON THOMAS AKPAN VS. THE STATE (1992) NWLR (pt. 248); (1992) 7 SCNJ 22; (1992) LPELR-381 (SC) per Karibi – Whyte, JSC @ 36 paragraphs E-F; SHITTU VS. THE STATE (1970) 1 ALL NLR 228; QUEEN VS. ITULE (1961) 1 ALL NLR 462; (1961) 2 SCNLR 183; ADAMU VS. A.G BENDEL STATE (1986) 2 NWLR (pt. 22) 284; AREMU VS. THE STATE (1991) 7 NWLR (pt. 201) 1; EJINIMA VS. THE STATE  (1991) 6 NWLR (pt. 200) 627.

By virtue of the plethora of authorities on the point, inclusive of the locus classicus – R. VS. SKYES (1913) 8 CR. A. R 233, in order to determine the weight to be attached to a confessional statement, it behooves the Court to resolve whether or not:
(i) There is anything outside the confession to show that it is true:
(ii) The confession is corroborated.
(iii) There are relevant, facts made therein true as far as they can be tested;
(iv) The defendant (Accused person) was one who had the opportunity of committing the offence armed robbery in the instant case.
(v) The said confession was possible;
(vi) The confession was consistent with other facts which have been ascertained and duly proved beyond reasonable doubt.
See NSOFOR VS. THE STATE (2004) 18 NWLR (pt. 905) 292; NWACHUKWU VS. THE STATE (2007) 17 NWLR (Pt. 1062) 31.

​A confessional statement, once it’s duly established to be free, voluntary, direct and positive, is quite sufficient to sustain a conviction. However, the Court is required to, first and foremost, test the veracity (truth) of the confession before acting thereupon, thus, once the Court comes to the inevitable conclusion that the confession is true, the confessional statement alone is sufficient to ground and support a conviction without corroboration. Albeit the veritable test for determining the veracity of confessional statement, is to seek any other extraneous evidence, no matter how slight, of circumstances which render it probable that the confession is indeed true. See ALARAPE VS. THE STATE (2001) 5 NWLR (Pt. 705) 79 @ 98 Paragraphs F-G; ACHABUA VS. THE STATE (1976) 12 SC. (Pt. 63) 68-69.

Remarkably, the trial Court made some far-reaching findings in the course of the vexed judgment at pages 115-116 of the Record:
5) It is noteworthy that the 1st accused person (Appellant) who was later arrested on the 21/09/2010, stated in Exhibits P10 & P12 that the 1st accused was a new comer to their gang and his first robbery outing with them was on the 16/09/2010. He stated that he and Monefu (now at large) had been carrying out previous robberies together. He further stated that five days after they robbed PW1 and PW2, he and Monefu met again at their usual spot and went on another expedition at Laderin Estate to harass workers on building sites and extort money from them, from where he got arrested and Monefu again escaped.
6) Also in Exhibits P10, P12, the 1st accused had stated that he was a commercial motorcyclist … and that on the 16/09/2010, he carried the other two robbers on that motorcycle to the scene of crime. These extra-judicial statements of his one corroborated by the evidence of PW3 & PW4 to the effect that one Bajah Motorcycle was recovered on the day of the incident. They one also corroborated by the evidence of PW3 that the owner of the motorcycle applied to the police for its release and same was released to him on bond.
I find the confessions in the extra-judicial statements (Exhibits P10-P13) to be consistent with other facts which have been proved by the prosecution and I believe that the accused persons had the opportunity of committing the crime, particularly as they could not give satisfactory explanations in their oral evidence before this Court as to the cause of their arrests.

On the part thereof, the Court below aptly held at page 179 (lines 10-17) of the Record:
The alibi the Appellant tried to set up in his evidence chief was Unverifiable and Unreliable. The alibi was not set up at the Police Station to enable the police carry out appropriate investigation. Analysis of the Status of the Confessional Statements was masterfully set out by the trial Judge in the judgment at pages 113-117. His Lordship thus tested fully the reliability of the Confessional Statement and was right in basing the conviction of the Appellant on it; the Appellant having fully identified himself in the confession as a party to the robbery.

Arguably, the foregoing concurrent findings of the two Courts are most undoubtedly cogent, unassailable, and duly supported by the evidence on record.

As aptly postulated by the Court below at page 179 (lines 18-22) of the said Record, although the Appellant did not specifically challenge the finding of the trial Court in regard to the conspiracy count, there is no doubt from Exhibits P10 and P12 in question, the Appellant and the two other persons had formed a common intention (agreement) to effect an unlawful purpose: armed robbery. Undoubtedly, the Appellant and the two other persons did not act individually, but rather, in pursuance of a common purpose with a view to committing armed robbery. Thus, the actual commission of the offence of the armed robbery in question provided a veritable evidence of the trio’s common intention, as aptly held by the two Courts below in the concurrent findings thereof in question.

Indeed, it’s a well settled doctrine per-adventure by this Court in a plethora of veritable authorities, that where there is sufficient evidence to support concurrent findings by the two lower Courts, such findings ought not to be tempered with (disturbed), unless the findings are shown to be perverse, or occasioned some miscarriage of justice, or breached some fundamental principle of law or procedure. See OGOALA VS. THE STATE (1991) 2 NWLR (pt. 175) 509; (1991) 3 SCNJ, 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) per Nnaemeka – Agu, JSC @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 69 SC 173. SOBAKIN VS. THE STATE (1981) 5SC 75; NWIBOKO VS. THE STATE (1985) 4 SC (pt. 11) 183; IKEM VS. THE STATE (1985) 1 NWLR (pt.2) 378 @ 388.

Hence, against the backdrop of the foregoing far-reaching postulations, I am of the considered view that the sole issue raised and canvassed in the appeal by the respective parties ought to be, and same is hereby resolved against the Appellant. Thus, having ultimately resolved the sole issue against the Appellant, the appeal resultantly fails, and same is hereby dismissed by me.

The concurrent judgment of the Court below, is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, and to register the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court, Coram: M.B. Dongban-Mensem, C.E. lyizoba and N. Okoronkwo JJCA, delivered on the 28th day of October, 2016. In the said judgment, the Court below affirmed the decision of the trial Court of 18th December, 2014 wherein, the Appellant was convicted and sentenced to death by hanging.

Dissatisfied with the judgment of the lower Court, the Appellant has come before this Court upon two grounds of appeal.

At the hearing on the 28th January, 2021, date of hearing, learned counsel for the appellant, M.O. Adebayo adopted the brief of argument filed on 6/2/2018 and deemed filed on 21/11/2019. He distilled a sole issue for determination, viz:-
Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution had proved its case against the appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

Learned counsel for the respondent Adekolapo Ilori adopted the brief of argument filed on 23/4/2018 and deemed filed on 21/11/2019 and crafted a sole issue as follows:
Whether from the entirety of the evidence on Record, as well as material available, the conviction of the appellant for the offences of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

For ease of reference, I shall make use of the issue drafted by the appellant.

SOLE ISSUE
Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution has proved its case against the appellant beyond reasonable doubt.
Learned counsel for the appellant contended that the alleged offence was committed around 7p.m in the night and the appellant was not arrested at the scene of crime and so the identity of the culprit was doubtful.

​That PW2 did not identify the accused persons including the appellant as the perpetrators of the alleged armed robbery. That the testimonies of the PW1 contradicted an essential part of the extra judicial confession of the 2nd accused (Exhibit PW1) which confession forms part of the prosecution’s case.

It was submitted for the appellant that an identification parade was a necessity and having not been carried out, there is a doubt which had to be resolved in favour of the appellant. He cited Bozin v State (1985) NNCC Vol. 16 (part II) p. 1087 at 1092.

For the appellant, it was contended that the appellant consistently denied the commission of the offence and also denied the authorship of the confessional statements, Exhibits P10 & 12.

That the prosecution failed to establish the elements of the charge of armed robbery and conspiracy to commit armed robbery against the appellant as there is nothing linking the appellant to the robbery based on the evidence before the Court including the testimonies of PW1 and PW2.

​Learned counsel for the respondent contended that the prosecution made out the offences of armed robbery and conspiracy to commit armed robbery beyond reasonable doubt. That the confessional statement of the appellant denied herein did not render the statement void. He cited Nwaebonyi v The State (1994) 5 NWLR (pt. 343) 138.

He stated that the appellant did not give any material with which the alibi he raised would be substantiated. He cited Essien v The State (2013) LPELR-20749.

That the circumstantial pieces of evidence adduced at the trial of the appellant are cogent and clearly pointed to the conspiracy to commit armed robbery and armed robbery for which the appellant was convicted. He cited Akinmoju v The State (2000) 6 NWLR (pt. 662) 608 at 629.

The contest in this appeal are along two opposing angles, for the appellant, that the Court below erred in law when it considered Exhibit P10 which was erroneously held to be the retracted confessional statement of the appellant to affirm the decision of the trial Court. That the appellant was not properly identified. For the respondent, it was posited that the evidence adduced was both circumstantial and confessional and not just cogent but complete and unequivocal, that no other conclusion ought to be inferred than, that the appellant was not only at the scene of crime on the day of the incident, but he also committed the offences for which he was convicted.

It is now well settled in law that, what is required in proof of a criminal offence including the armed robbery and conspiracy to commit armed robbery charge under discourse is that the essential ingredients of the offence are proved beyond reasonable doubt by the prosecution and it is not expected that the standard of proof is one beyond every shadow of doubt.

It follows that to sustain a charge of Armed Robbery against the accused person, the following ingredients must be proved beyond reasonable doubt:
(a) That there was an armed robbery or a series of robberies
(b) That each of the robberies was an armed robbery
(c) That the accused was one of those who took part in the robbery or robberies.
I rely on Miller v Minister of Pensions (947) 2 All ER 372; Agboola V State (2013) 11 NWLR (pt. 1366) 619 at 173.

​A combination of the evidence of PW1, PW2, PW3 and PW4 coupled with Exhibits P1-P11 tendered at the trial Court all gave evidence to the fact that, there indeed was an armed robbery on the 16th November, 2010 at No. 62, Isabo road, Abeokuta. A bit of the evidence of PW1 – Rukayat Ajayi on 16th November, 2010 is thus:-
“I was at my shop and a consignment of rice and oil was being offloaded for me. Then I saw the 1st accused person was holding a gun and pointing it at me…”

The 1st accused is the appellant herein.
The said gun pointed at PW1, which infact qualifies the Robbery as “Armed” is perhaps one of the locally. made guns tendered as Exhibits P6 and P7, recovered at the scene of arrest of DW2, the co-accused, after the two had escaped. Additionally to the testimony of PW1, supported by Exhibits P6 and P7, the confessional statements marked Exhibits P10 and P12, made at the Ibara Police Station and State CID, was one of those who took part in the crime, even when he had resiled from therefrom at the trial. The accused, in his confessional statement stated:
“On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine; myself and Morufu have both robbed people on transit before, we both snatch bags from passers-by of Adigbe area. When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan. I only go on operation with Morufu.
On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg. No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle. I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

The confessional statement of DW1, the accused is further corroborated by the evidence of PW2; ZAINAB AHMED under examination-in-chief, who gave a vivid account of what occurred viz:
“…I recollect that on the 16th September, 2010 at about 7pm, myself and my mother were sitting at two different tables in front of her shop. The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “jegun-jeran” (Someone that eats the meat along with the bone) failing which he will try his gun on me. He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-by motorcycle. There were 3 men that came for the robbery operation…”

The appellant had made much of his retraction of the confessional statement.

A retraction of a confessional statement by an accused person does not render such statement void.

Rather, it is settled principle as laid down by this Honourable Court that the weight to be attached to a Confessional Statement, whether or not retracted, be applied as in Nwaebonyi v The State (1994) 5 NWLR (Part 343) 138, held thus;
“In R. v. SYKES (1913) 8 CR App Rep.233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in KANU v. THE KING(1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as DAWA v. THE STATE (1980) 8-11 SC 235; THE QUEEN V. OBIASA(1962) 1 ALL NLR 651; (1962) 1 SCNLR 137; OBOSI V. THE STATE (1965) NMLR 129 and ONOCHIE V. THE REPUBLIC (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are there relevant statements made in it of facts true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder? (where it is a case of murder)
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
See also NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292; OJEGELE V. THE STATE (1988) 1 NWLR (PART 71) 414; NWACHUKWU v. THE STATE (2007) 17 NWLR (PART 1062) 31”

​From a plethora of cases so decided by this Court, it is settled principle of law that a confessional statement without more, which passed the above tests as laid down by this Court as in this case is enough to sustain a conviction of an accused person. In Alarape & 3 Ors v. The State (2001) 5 NWLR (Part 705) 79, 98 F-G this Honourable Court per Iguh, JSC held that:
“A confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The Court should not, however, act on the confession without first testing the truth thereof. But so long as the Court is satisfied with its truth, a confessional statement alone is sufficient to ground and support a conviction without corroboration. The test, however, for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true.”
See; Achabua v The State (1976) 12 S.C. (Part 63) 68-69
Clearly, the confessions Exhibits P10 and P12 alone being sufficient to justify the conviction of the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery, there are other pieces of evidence adduced at the trial that sustain the conviction of the Appellant, PW2 the victim of the Armed Robbery who gave evidence of the event as follows:
“l recollect that on the 16th September, 2010, at about 7pm, myself and my mother were sitting at two different tables in front of her shop. The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “Jegun-jeran” (someone: that eats the meat along with the bone) failing which he will try his gun on me.” He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-bye motorcycle. There were 3 men that came for the robbery operation…”

The evidence of PW2-ZAlNAB AHMED was neither challenged, discredited nor was she contravened under cross-examination by the Appellant’s Counsel and the trial High Court was bound to accept and act on it. In Aigbadion v. State (2000) 7 NWLR (Part 666) 686, 702-703 H-A the Supreme Court per Kastina-Alu, JSC (as he then was)
“This evidence was not challenged or contradicted. The law, as I know it, is that such evidence will be accepted as proof of a fact it seeks to establish: see Nwede v The State (1985) 3 NWLR (Pt. 13) 444. If therefore the story of an accused stands uncontradicted then it is to the facts as put forward by him that the trial judge would related the applicable law…”

PW3 – OGUNLEYE IDOWU, the Police Officer attached to the State C.I.D. Anti-Robbery Section, Abeokuta, under examination testified as to what transpired on the 23rd September, 2010 when the Accused persons were brought in. She testified thus;
“l know the accused person. I remember the 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with the case file and exhibits (2 locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle…”

​Upon tendering the said exhibits and subsequently being admitted and marked, except for the motorcycle (whose Application for Release and Bond Paper were later admitted and marked Exhibits P8 and P9 respectively), PW3 testified inter alia that;
“The motorcycle was released on bond to one Oladiende Akeem who claimed to have given the Motorcycle to the 1st accused for commercial business and he produced the original particulars of the motorcycle. The said Oladeinde Akeem volunteered a statement before the motorcycle was released to him on bond and he also applied for the release of the motorcycle…”

The evidence of PW3, was not impugned by Counsel to the Appellant especially as regards the said motorcycle, neither was any effort made to discredit or deny the fact that the Accused, (now Appellant) had been riding a motorcycle prior to the 16th September, 2010 and his subsequent arrest. The existence of this Lifan Motorcycle with Reg. No QS 218 AKD, which was ridden by the DW1 on the day of the Armed Robbery, which was later abandoned on pursuit and later recovered by the Nigeria Police clearly and unequivocally links DW1 to the scene of the crime on that very night, which was in fact corroborated by the testimony of PW2 when she said;
“… I saw another man sitting on a stand-by motorcycle…”

​In addition to the testimony of PW2, through the proofs of evidence, it is seen how Oladiende Akeem gave his younger brother Ismaila Alao some money to buy a motorcycle in his name and thereafter gave it to the 1st Accused person to use for commercial purpose. This fact is further confirmed in the confessional statement of the 1st accused when he said;
“…Presently now I am an Okada rider before this incident on 16/9/2010. I have my own personal Okada but it got spoiled, but the Okada I am riding now belongs to one Ismaila (surname unknown) we are in the same Okada park. That is why he gave me Okada to ride and I am deliver to him everyday (sic). I collected this Okada Reg No. QS 218 AKD from him on the. 13/9/2010 to ride…”

At this point, the attempt of the accused to bring up a defence of alibi during trial when he gave evidence thus:
“l recalled the 16/09/2010. On the day, I went to where I do bricklaying work, somewhere behind mechanic village at Kobape, and I returned home at 6:30pm and slept. On the 17th and 18th I also went to work and on the 19th was Sunday and I did not go to work. On Monday the 20th, I was weak and did not go to work. It was on the 21st September, 2010, that I went to the same site again at Kobape…”

It is a well known principle of law that for the defence of alibi to succeed; that is to say “l could not have possibly been at the scene of the crime at that instant time because I were somewhere else”, it should be raised at the earliest possible time, and there are infact a whole lot of cases to this effect. I shall cite:
In Egwumi v The State (2013) LPELR-20091(SC) the Supreme Court per Rhodes-Vivour, JSC held that:
“When an accused person raises the defence of alibi what he is saying is that when the offence for which I am charged was committed I was elsewhere. 1. The defence of alibi must be properly put at the earliest opportunity by the accused person and this would be when he has the opportunity to make his statement to the Police. It must be detailed on where he was on the date in question who he has with. It would then be the duty of the prosecution (the investigating police officer) to investigate it. Failure to investigate properly may cost some doubt on the probability of the prosecutions case. 2. The accused person is required to raise the defence of alibi and the adduce evidence in support. The burden of proving an alibi is on the prosecution and not on the accused person. 3. A defence of alibi fails when the prosecution is able to show that the accused person was at the scene of crime when the offence was committed. 4. Where an alibi is raised for the first time during trial the prosecution is expected to rely on its witnesses to show that the alibi is untrue, since at this stage the alibi cannot be investigated.”
It is therefore respectfully posited that not only was the defence of alibi raised only at the trial and long after the accused was arrested and investigations concluded, the accused, at the trial High Court was unable to adduce any evidence to support this defence that he was somewhere else on 16th September, 2010, at the time of the incident. All he could say at the trial was that he was at his bricklaying job and returned home at 6:30pm. This is unreliable and unverified, and also not corroborated by anyone or person. The fact that the Prosecution is saddled with the responsibility of rebutting or disapproving the alibi does not mean the Police would go on a wild goose chase in search of evidence to the contrary without being furnished with adequate information by the accused who so alleges. This point was infact succinctly captured in the judgment of this Court in Essien v The State (2013) LPELR-20749 per Ariwoola, JSC, where it was held that;
“By the defence of alibi, the accused person seeks to raise a doubt of what might have been a fool proof case of the prosecution by saying that he was somewhere else at the time the crime was alleged to have been committed but not at the scene of crime. Therefore, as where he was at the material time is a matter especially within his knowledge, the law required that for his defence of alibi to avail him and succeed in raising doubt in his favour, he ought to do certain things. Importantly, he ought to raise the defence at the earliest possible opportunity. He ought to in his statement give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden on him in his defence of alibi. See; Esangbedo V. The State (1989) NWLR (pt. 113) 57; (1989) LPELR 1163; Akile Gachi & Ors V. The State (1965) NMLR 333 at 335; Abudu V. The State ​(1985) 1 NWLR (pt. 1) 55; Nwabueze v. The State (1988) 4 NWLR (pt.86) 16 at 34. It is instructive to note and this Court has restated over and over again, that even though it is a duty on the prosecution to investigate an alibi set up by an accused, that he was somewhere else at the time of the alleged crime, the police are not and should not be expected to go on a wild goose chase in order to investigate an alibi. See; Okosi & Ors V. The State (1989) CLRN 29 at 48. Olatinwo v. The State (2013) LPELR 19979.”

On the other hand, the prosecution proved beyond reasonable doubt that the appellant not only was at the scene of the crime on 16th September, 2010. This, has successfully established by the direct Evidence in Exhibits P10 and P12; the confessional statement of the appellant, DW1, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4, together with the circumstantial evidence available in abundance.

On the importance and effect of circumstantial evidence in criminal trials, the Supreme Court per Aniagolu, JSC in Onah v. The State (1985) 3 NWLR (Part 12) 236, 244 C-D held that:
“It was a case of circumstantial evidence and the rightful inference to be drawn therefrom. Humphery, J. in Rex v. Chung & Miao cited in Wills of Circumstantial Evidence seventh edition (1936) at page 324 is quoted as having stated that:
‘Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, what is meant by is that there is, a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.”
See also:
– Ukorah v. The State (1977) 4 S.C. 167, 174
– Esai v State (1976) 11 S.C. 39
– Adekunle v State (2006) 14 NWLR (Part 1000) 349
– Uwaekweghinya v State (2005) NWLR (Part 930) 227
It was also held in Akinbisade v. The State (2006) 17 NWLR (Part 1007) 184, 212 A-B by the Supreme Court per Kalgo, JSC that:
“It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent, and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence.”

I agree with the submission of the Respondent that the circumstantial evidence in the present appeal which warranted the conviction of the Appellant for the offences for which he was subsequently convicted the following:
(a) There was a robbery attack on the PW1 at her shop on 16th September, 2010, at about 7pm and that there were three men who came on a motorcycle
(b) The robbers were armed with guns and knives, which they threatened to use on PW1 and her daughter PW2.
(c) Upon collecting the bag of PW1 which contained Three Hundred and fifty thousand naira (N350,000), and the phones of PW2 and another victim around, the three robbers climbed the motorcycle and drove away
(d) PW1 subsequently raised an alarm and the robbers were pursued by a mob and subsequent knocked down by a vehicle
(e) The Appellant and one Morufu, now at large escaped. However, his co-accused as caught and handed over to the police the same day the robbery incident occurred; along with a motorcycle with Registration No. QS 218 AKD
(f) That the appellant was later caught five (5) days later around Kobape, Abeokuta in possession of a cutlass, where he apparently had gone to rob yet again in company of Morufu, who unfortunately escaped again.
(g) PW3 testified under examination that the said motorcycle had been released on bond marked Exhibit P9 to one Oladeinde Akeem, who had applied for its release, showing the original papers of the motorcycle issued in his name. Oladeinde Akeem also claimed to have been given the motorcycle to the appellant for commercial business.

The above enumerated pieces of circumstantial evidence adduced at the trial and cogent, clearly point to the commission of the offences of conspiracy to commit armed robbery and armed robbery for which the appellant was convicted.
Assuming that the Appellant did not make, or Exhibits P10 and P12 are not in existence, the whole circumstantial evidence in this case is credible, cogent, consistent, unequivocal and leads to one conclusion only that the Appellant was one of the three (3) men that carried out the armed robbery incidence on 16th September, 2010 at the shop of PW1.
​Furthermore, the evidence demonstrated that the Appellant made Exhibit P10 and P12 which corroborate the circumstances and other evidence adduced by the Respondents as Prosecution at the trial of the Appellant: the effect of which is as outlined above and justifying his conviction by the trial High Court as affirmed by the lower Court of appeal.
The onus thereafter rested on the appellant to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by the preponderance of probabilities. The accused/appellant has not shown the capacity for such rebuttal or the casting of a reasonable doubt on the case put forward by the prosecution by preponderance of probabilities. It is no wonder the two Courts below made the conviction. See Akinmoju v The State (2000) 6 NWLR (Pt. 662) 609 at 629 per Iguh, JSC.

In respect to the question of the irregular identification and the need for an identification parade which the appellant posed. I shall rely on the case of Afolalu v The State (2010) 16 NWLR (Pt. 1220) 584 at 616 per Adekeye, JSC in which he held thus:-
“identification parade is not obligatory, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Similarly, inThomas v State(2017) 9 NWLR (part 1570) 230, 256 G-H the Supreme Court per Kekere-Ekun, J.S.C:
“It is not in every case that an identification parade is necessary to identify a person accused of committing a crime. The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial Court on the evidence adduced for that purpose…
In a case such as this where the evidence of PW2 as positive, cogent and unshaken under cross-examination, the learned trial Judge was entitled to rely on it along with other facts established by the prosecution in finding that the prosecution had proved its case beyond reasonable doubt”.
Following in the guide laid down byAfolalu v The State(supra), even if all other evidence adduced in this case were to be isolated, the fact that the motorcycle was Reg. No. QS 218 AKD was recovered at the scene of the arrest is a strong indicator to the fact that indeed there is an iota of truth to the findings of the two Courts below. The appellant on the other hand neither denied the fact that he was given a motorcycle nor did he report such missing so as to raise a doubt that he was not the one who rode the motorcycle on the date in question.

The appellant has appealed against the concurrent findings of facts by the two Courts below and so, this Court is averse to interfering with them when there is no miscarriage of justice occasioned. Also not available is a misapplication of law in the course of those lower Courts findings. The point has to be made that the Supreme Court or even an appellant does not enter into the interference and the disturbance of concurrent findings of Courts below which as in this instance stemmed from the evidence led and grounded in the applicable laws. See Ibikunle v The State (2007) 2 NWLR (Pt. 1019) 546 at 567 per Onu, JSC; Shehu v The State (2010) 8 NWLR (Pt. 1195) 112 at 135 per Ogbuagu, JSC, Agbi & Ors v Ogbeh (2006) 11 NWLR (pt. 990) 65 per Musdapher, JSC (as he then was).

Clearly, there is no merit in this appeal and I do not hesitate in dismissing it.

Appeal dismissed and I abide by the consequential orders made.
Appeal Dismissed.

-PER JOHN INYANG OKORO, J.S.C.: I had the opportunity of perusing before now, a draft copy of the leading judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I entirely agree with his reasons and conclusion reached therein that this appeal is devoid of merit and deserves to be dismissed. I shall only make a few comments in support of what my brother has already done.

The position of the law is settled that in a criminal trial, there are three ways of establishing that an offence has been committed, to wit:
(a) by direct evidence of an eyewitness; or
(b) by circumstantial evidence; or
(c) by confessional evidence of the accused person.
See F.R.N. vs Barminas (2017) 15 NWLR (pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (pt. 1575) 126.
The Court can safely convict an accused person where it is convinced that the prosecution has sufficiently employed any of these modes to prove the guilt of the accused.

In the instant case, it is not in doubt that there was robbery on 16/9/2010. The Appellant’s confessional statement which was admitted as Exhibits P10 and P12 corroborates the evidence of PW1 and PW2 who were eye witnesses that the Appellant was one of the robbers and that he was armed during the operation.

These are unassailable pieces of evidence and the law is clear that the evidence of a single witness, if credible and cogent, is sufficient to ground a conviction. See Ogoala v. State (1991) 2 NWLR (pt. 175) 509.

Moreover, a confessional statement is the best form of evidence employable to prove the guilt of an accused person. Where a confession is proved to be positive and truthful, such a statement is sufficient to ground conviction without more, and it is immaterial that the accused person later resiled from making the statement as in this case.
See Ikemson v. State (1989) 3 NWLR (pt. 110) 455.

My learned brother has listed the perimeters for measuring the truthfulness of a retracted confessional statement so as to determine the weight to be attached to it as outlined in R. vs Sykes (1913) 8 CA R 233. In this case, all the indices align with the probability that the Appellant’s confession in Exhibits 10 and 12 was the truth and the Court was right to rely on it.

​In the final analysis, this appeal has no scintilla of merit. It is hereby dismissed by me. I abide by the orders made in the lead judgment.
Appeal Dismissed.

EJEMBI EKO, J.S.C.: The Appellant and another were tried jointly for conspiracy to commit armed robbery and the commission of armed robbery contrary, respectively, to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special provisions) Act. The Appellant, convicted for both offences, appealed. The lower Court dismissed the appeal; hence, this further appeal.

The Notice of Appeal, at pages 182-185 of the Record, filed on 20th January, 2017, against the decision delivered on 28th October, 2010 (85 days thereafter) is clearly defective, having been filed out of time. Section 27(2)(b) the Supreme Court Act, 2004, provides, mandatorily, that the period prescribed for giving notice of appeal in an appeal in a criminal case shall be “thirty days from the date of the decision appealed against”. Prima facie, this appeal is incompetent, invalid and a nullity.

At page 3, paragraph 1.10 of the Respondent’s brief there is, however, this ambivalent statement to wit:
By motion on Notice of 6th February, 2018, the Appellant had sought to regularise the appeal as well as the Appellant’s Brief of 6th February, 2018 service of which was effected upon the Respondent on 9th April, 2018.”

The Appellant’s counsel did not react to it. Apart from this terse statement there is no evidence, if at all, that the Motion filed on 6th February, 2018 to regularise the incompetent appeal was ever moved, and the appeal duly “regularised”. When an appeal is incompetent and void ab initio the jurisdiction of this Court cannot be activated to even regularise it. In ADERIBIGBE v. ABIDOYE (2009) LPELR-140 (SC) at 28-29 it was held that when an appeal is void ab initio, the jurisdiction of the Court is not even activated to empower it to grant leave in the “appeal” for an additional ground of appeal to be filed and argued: even if the issue in the additional ground is one raising substantive issue of law or jurisdiction. In other words, an incompetent appeal cannot be regularised subsequently; the appeal being dead on arrival. One, anyway, cannot place something upon nothing and expect it to stand: MCFOY v. U. A. C LTD (1961) 3 ALL E.R. 1169; (1962) A. C. 152.

​Whatever comments I make on the merits of this appeal will therefore be merely obiter dictum.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This appeal is just a frivolous exercise. Exhibits P10 and P12 are the Appellant’s confessional statements. They were admitted in evidence against the Appellant’s without objection – see pages 61 and 65 of the Record. Accordingly, involuntariness of their making not being an issue, the mini trial to resolve the voluntariness or otherwise was not conducted as it was not necessary. At page 69, when the Appellant testified as DW1, he was shown only Exhibit P12 and he retorted:
It was Exhibit P12 that the policeman thumb printed my thumb on.

Exhibit P10 was not similarly shown to him, and there was no similar indictment of Exhibit P10. The said Exhibit P10 is also a confessional statement. Even without Exhibit P12, the conviction of the appellant could still be sustained on Exhibit P10 alone.

In paragraph 5.05 of the Appellant’s brief there appears this misleading statement that the Appellant denied making Exhibit P10. That is false. He never did, from the Record.

Exhibit P10, a confession, had fixed the Appellant to the alleged crimes. It is therefore not correct for the Appellant’s counsel to submit, as he did, that because the PW1 admitted seeing the Appellant for the first time at the trial Court it was “Impossible and doubtful” that the Appellant made his confessions in Exhibits P10 and P12. It is similarly incorrect for the Appellant’s counsel to have submitted (in paragraph 6.02 of the Appellant’s Brief) that identification parade was “necessary and must be conducted” in view of the evidence of the PW.1, the victim; notwithstanding the Appellant’s own confession fixing him to the alleged offences. No issue was raised or made that Exhibit P10, recorded by PW3 and counter-signed by a superior police officer, was oppressively recorded or extracted from the Appellant; or that it was non est factum. It was not also retracted. The making of Exhibit P10 was not in anyway, allegedly, offensive and/or contrary to Section 29 of the Evidence Act, 2011.

I think I should point out that, the mere fact that the Appellant, as DW1 in a clear afterthought, stated without proof that he was forced to thumbprint Exhibit P12 does not render Exhibits P10 and P12 inadmissible against him. The mere fact of his resiling from Exhibit P12 does not necessarily render Exhibits P10 and P12 inadmissible; R. v. KANU (1952) 14 WACA 30; EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; NWAEBONYI v. THE STATE (1994) 4 NWLR (pt. 343) 138 at 150 – 151.

I find no basis for this appeal, even if it were competent. I would have dismissed it in its entirety, in tandem with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, and in agreement with the Respondent.

ADAMU JAURO, J.S.C.: I had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.

​I adopt the said judgment as mine in dismissing the appeal.
Appeal Dismissed.

Appearances:

MUTALUBI OJO ADEBAYO, ESQ. For Appellant(s)

ADEKOLAPO ILORI, ESQ. For Respondent(s)