LAWAL v. STATE OF LAGOS (2021)

LAWAL v. STATE OF LAGOS

(2021)LCN/15086(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/LAG/CR/771/2019

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

HAKEEM LAWAL APPELANT(S)

And

THE STATE OF LAGOS RESPONDENT(S)

RATIO

WHETHER EVALUATION OF EVIDENCE FALLS SQUARELY WITHIN THE EXCLUSIVE PRESERVE OF A TRIAL COURT; WHETHER AN APPELLATE COURT CAN INTERFERE WITH A FINDING OF A TRIAL COURT ANCHORED ON DEMEANOUR AND CREDIBILITY OF WITNESSES

… evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage which cannot be recaptured by an appellate Court to watch the witnesses form impression on their demeanour and valuate the credibility or otherwise of their evidence. See Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses. See Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice. See Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence. See Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sami (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. PER OBANDE FESTUS OGBUINYA, J.C.A.

WHEN CAN PIECES OF EVIDENCE OF A WITNESS OR WITNESSES BE SAID TO BE CONTRADICTORY; WHEN IS CONTRADICTION IN EVIDENCE OF A WITNESS OR WITNESSES FATAL TO ANY CASE

Etymologically, contradiction like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the ositoppe”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case. See Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127. PER OBANDE FESTUS OGBUINYA, J.C.A.

POSITION OF THE LAW REGARDING DISCREPANCIES IN EVIDENCE OF WITNESSES

The law embraces discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”. See Eke v. State (supra) at 665, per Fabiyi, J.S.C.; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that minute differences in the narration of evidence attest to the veracity of the witnesses on the point. At any rate, the law grants witnesses the unbridled licence to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-a-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage. See Egwumi v. State (2013) 13 NWRL (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING AND DEFENCE OF ALIBI

… an alibi means “elsewhere”. It is a defence which absolves an accused of an offence. An accused who wishes to take refuge under the defence is expected to raise it timeously, at the earlier opportunity of his contact with the investigating security agencies, with the necessary particulars of his whereabouts and those with him on the day of the incident. Thereafter, the duty shifts to the prosecution to investigate the alibi and affirm or disprove it. It is destroyed by contrary evidence fixing the appellant at the place of the crime. If it is disproved, the defence fails and vice versa. See Eke v. State (supra); Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Ebri v. State (supra); Sunday v. State (2010) 18 NWLR (Pt. 1224) 223; Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Agboola v. State (2013) 1 NWLR (Pt. 1366) 619; Victor v. State (2013) 12 NWLR (Pt. 1369) 465; Egwumi v. State (supra); Ayam v. State (2013) 15 NWLR (Pt. 1376) 34; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Wisdom v. State (2017) 14 NWLR (Pt. 1586) 446; Agu v. State (supra); Adelani v. State (2018) 5 NWLR (Pt. 1611) 18; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; State v. Isah (2019) 1 NWLR (Pt. 1652) 139; Sale v. State (2020) 1 NWLR (Pt. 1705) 205. PER OBANDE FESTUS OGBUINYA, J.C.A.

IMPORTANCE OF FACTS IN THE DETERMINATION OF CASES

The importance of facts in the determination of cases cannot be over-emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to completely turn around the fortune or misfortune of a case. They define the success or failure of cases. In the Roman days of the law, they were couched as: Ex facto oritur jus – law has its offspring on the fact. See A.-G., Anambra State v. A.G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING OF ROBBERY; POSITION OF THE LAW REGARDING WHEN THE OFFENCE OF ROBBERY TRANSFIGURES INTO AN ARMED ROBBERY

In law, robbery means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the things stolen or to prevent or overcome resistance to its being stolen or retained. Where the robbery is accompanied by the use of firearm or offensive weapon, which causes or attempts to cause any person’s death or hurt or unlawful restraint or fear, it transfigures into an armed robbery. See The State v. Yamusissilka (1974) 6 SC 53 at 62; Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209. PER OBANDE FESTUS OGBUINYA, J.C.A.

BURDEN PLACED ON THE PROSECUTION IN SECURING A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY

To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required by law to prove beyond reasonable doubt that: there was robbery or series of robberies; each robbery was an armed robbery and the accused person was one of those who took part in the armed robbery. See Afolabi v. State (2010) 16 NWLR (Pt. 1220) 584; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Abdullahi v. State (2008) 17 NWLR (Pt. 115) 203; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Sale v. State (2016) 3 NWLR (Pt. 14499) 392; Ayo v. State (2016) 7 NWLR (Pt. 1510) 183; Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Akwuobi v. State (2017) NWLR (2017) 2 NWLR (Pt. 1550) 421; State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Amadi v. A.G., Imo State (2017) 11 NWLR (1575) 92; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18; Lawali v. State (2019) 4 NWLR (Pt. 1663) 457. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING AND NATURE OF PROOF OF THE OFFENCE OF CONSPIRACY

Conspiracy is a confederacy, or an agreement, between at least two persons with the aim of committing unlawful or criminal act or doing a lawful act by an illegitimate means. Being an agreement, express or implied, it takes at least two persons to conspire, id est, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to its usual clandestine nature, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from the proved acts of the conspirators in evidence. Such circumstantial evidence often as good as direct evidence must be cogent, consistent and irresistibly point to the guilt of the conspirators. In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime. See Ojo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366) 668; Clark v. State (1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt. 1) 6; Okeke v. State (1992) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (1973) 5 SC 17/(1973) 1 NMLR 331/(1975) LPELR – 2042 (SC); Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147; Adoba v. State (2018) 12 NWLR (Pt. 1633) 236; Yahaya v. State (2018) 16 NWLR (Pt. 1644) 96; Saminu v. State (2019) 11 NWLR (Pt. 1683) 254. PER OBANDE FESTUS OGBUINYA, J.C.A.

WAYS BY WHICH THE PROSECUTION MAY PROVE INGREDIENTS OF AN OFFENCE

Nota bene, the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement or circumstantial evidence or evidence of an eye witness. See lgri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505)443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391. PER OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Lagos State, holden in Lagos (hereinafter addressed as “the lower Court”), coram judice, O. Atinuke Ipaye, J. in Charge No. ID/1661C/2015, delivered on 18th March, 2019. Before the lower Court, the appellant and the respondent were the defendant and prosecution respectively.

The facts of the case, which mutated into the appeal, are amenable to brevity and simplicity. On or about 30th November, 2013, at about 2am, a band of intruders invaded the premises at No. 12 Lawal Street, Akowonjo, Egbeda, Lagos. The armed bandits, who were masked, robbed the occupants and owner of the premises, Niniola Olanipekun Sherifat, of her valuable assets and money. In the course of the robbery incident, a member of the gang called another by his name: Akeem, that is, the appellant who became infuriated, unmasked himself and threatened to shoot the member who called his name. The armed robbers shot the occupant/victim on the shoulder and gave her matchet cut on the head. The robbery incident was first reported at Shasha Police Station and later

transferred to the Special Anti-robbery Squad (SARS) Ikeja for proper investigation. After due investigation by the police, the appellant was arraigned before the lower Court in a 2-count amended information for the offences of conspiracy to commit robbery and armed robbery contrary to the provisions of Sections 297 and 295 (2) (a) of the Criminal Law of Lagos State, 2011 respectively. The appellant pleaded not guilty to the two counts in the amended information.

Following the plea of not guilty, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded three witnesses, PW1 – PW3, and tendered Exhibits 1 – 6. In defence of the case, the appellant called two witnesses, DW1 and DW2, and testified in person as DW3. At the closure of evidence, the parties, through learned counsel, addressed the lower Court by way of adoption of written addresses. In a considered judgment, delivered on 18th March, 2019, found at pages 153 – 177 of the record, the lower Court found him guilty, convicted and sentenced him to death.

The appellant was dissatisfied with the decision. Hence, on 29th April, 2019,

the appellant lodged a 4-ground notice of appeal which is copied at pages 178 – 185 of the record. Subsequently, the appellant, with leave of the Court, filed an amended notice of appeal on 17th October, 2019, but deemed properly filed on 2nd June, 2020 which hosts four grounds of appeal. Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing criminal appeals in this Court. The appeal was heard on 14th January, 2021.

During its hearing, learned appellant’s counsel, K. O. Adebayo, Esq., adopted the appellant’s brief of argument, filed on 23rd August, 2019 but deemed properly filed on 2nd June, 2020, and the appellant’s reply brief, filed on 29th July, 2020 but deemed properly filed on 14th January, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, A. O. Adeyemi, Esq., adopted the respondent’s brief of argument, filed on 22nd June, 2020 but deemed properly filed on 14th January, 2021, as forming his submissions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:
3.1 Did the Trial Court err in its finding of facts and in law when it held (at page 166a lines 20 and 21 of the Records) that the Court found no inconsistency in the testimonies of the prosecution witnesses, thus disregarded the various contradictions and inconsistencies in the evidence of the prosecution witnesses?
3.2. Did the Trial Court err in law when (in line 10 of pages 170 – 174 of the Records) it disregarded the defence of alibi raised by the defendant?
3.3. Was the Trial Court’s conviction of the defendant/appellant for the alleged offences of conspiracy to commit armed robbery and armed robbery accurate in fact and in law?

In the respondent’s brief of argument, learned counsel crafted a singled issue for determination viz:
Whether the trial Judge was right in convicting the Appellant of the offence of Armed Robbery and Conspiracy to commit Robbery?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s solitary issue can be conveniently subsumed under the

appellant. Given this sameness, I will decide the appeal on the issues nominated by the appellant, the undisputed owner of the appeal.

Arguments on the issues:
Issue one
Learned appellant’s counsel elaborately highlighted the features of contradiction in criminal proceedings. He relied on Idi v. State (2017) LPELR – 42587 (SC); Ikpa v. State (2017) LPELR – 42590 (SC); Akpan v. State (1991) 3 NWLR (Pt. 182) 646; Dagayya v. State (2006) 7 NWLR (Pt. 980) 637; Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57; Al-Mustapha v. State (2013) 34 WRN 131; C.O.P. v. Amuta (2017) LPELR – 41386 (SC); Emeka v. Okoroafor (2017) LPELR – 41738 (SC). Counsel listed the contradictions in the evidence of PW1 and PW2. He reasoned that the contradictions affected their ability to identify the appellant as required by law. He narrated the importance of identification in law. He cited Adamu v. State (2017) LPELR – 41436 (SC); Adekoya v. State (2017) LPELR – 41564 (SC). He concluded that the lower Court’s finding that there was no inconsistency in the respondent’s amounted to improper evaluation of evidence.

On behalf of the respondent, learned

counsel enumerated the conditions when contradiction would affect a party’s case. He asserted that there were no contradictions in the respondent’s evidence. He relied on Ehot v. State (1993) 4 NWLR (Pt. 290) 644; Ndike v. State (1994) 8 NWLR (Pt. 360) 33; Onubogu v. State (1974) 9 SC 1; Okeke v. State (1995) 4 NWLR (Pt. 392) 676. He claimed that what the appellant listed as contradictions were not contradictions. He stated that PW1 and PW2 gave evidence 3 years after the incident and could not have given every detail. He insisted that there were no material inconsistencies in the evidence of the PW1 and PW2.

Issue two
Learned appellant’s counsel explained the essence of evaluation of evidence as opposed to recital of evidence which was what the lower Court did. He relied on Abdu v. State (2014) LPELR-22562 (CA). He posited that the appellant established alibi based on his evidence, DW3, that of DW2 and Exhibit 5. He heavily relied on Idemudia v. State (2015) LPELR – 24835 (SC). He took the view that the appellant’s case was distinguishable from that of Adewunmi v. State (2016) LPELR – 40106 (SC).

For the respondent, learned counsel

argued that the evidence showed that the appellant was at the scene of the crime which created no doubt in his favour by the respondent’s failure to investigate his defence of alibi. He cited Victor v. State (2013) 12 NWLR (Pt. 1369) 465. He added that the appellant did not give the police enough particular of his alibi in his statement – Exhibit 5. He urged the Court not to interfere with the lower Court’s finding on alibi as it was supported by evidence. He referred toMekwunye v. W.A.E.C. (2020) 6 NWLR (Pt. 1719) 1.

Issue three
Learned appellant’s counsel enumerated the three ways to prove crime. He relied on Adeoye Aliu v. State (2014) LPELR – 23253 (CA). He conceded that the evidence of an eye witness is one of the best evidence. He cited Agu v. State (2017) LPELR – 41664 (SC). He took the view that the lower Court wrongly relied on the evidence of PW1 and PW2, as eye witnesses, without verifying the veracity of their testimonies. He observed that the lower Court wrongly used Exhibits 1 – 4 as corroborative evidence of PW1 and PW2 when they were not independent evidence. He referred to Ifaramoye v. State (2017) LPELR

– 42031 (SC). He noted that Exhibit 4, which was on suspicion, would not corroborate the evidence of PW1 and PW2. He opined that the second and third ingredients of robbery were not proved even if there was robbery. He persisted that the lower Court wrongly convicted the appellant on mere suspicion. He cited Adeoye Aliu v. State (supra); Nsofor v. State (2003) Vol. 20 NSCQLR 74; Al-Mustapha v. State (supra); Ahmed v. State (2001) 92 LRCN 3467.

On the side of the respondent, learned counsel listed the ingredients of the offence of armed robbery. He relied on Agboola v. State (2013) 11 NWLR (Pt. 1366) 619; Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Ani v. State (2009) 16 NWLR (Pt. 1168) 443; Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584; Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1; State v. Salawu (2011) 8 NWLR (Pt. 1279) 580. He maintained that evidence of PW1 and PW2 showed that the appellant committed the offence of armed robbery which the lower Court believed after watching their demeanour. He posited that the respondent proved the case beyond reasonable doubt as required by law. He cited Philip v. State (2019) 13 NWLR (Pt. 1690) 509.

Resolution of the issues
A clinical examination of the three issues amply discloses that they share a common mission id est to puncture the lower Court’s findings after the evaluation of the evidence before it. It therefore becomes imperative to display the essential hallmarks of evaluation of evidence as combed out from judicial authorities.

Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage which cannot be recaptured by an appellate Court to watch the witnesses form impression on their demeanour and valuate the credibility or otherwise of their evidence. See Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility

of witnesses. See Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice. See Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.

Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence. See Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sami (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this coextensive jurisdiction in the appraisal of the army

of documentary evidence in this appeal. Again, I will bear in mind these evidential parameters as the barometer to measure the propriety or otherwise of the lower Court’s evaluation of the evidence in the case.

For the sake of orderliness, I will attend to the issues seriatim. To this end, I will kick start with the treatment of issue one. The plinth of the issue is plain and canalised within a narrow compass. It chastises the lower Court’s finding that there were no inconsistences/contradictions in the respondent’s evidence.

In order to castrate the decision, the appellant erected the defence of contradiction. It was contended that the respondent’s evidence was infested with contradictions which rendered them unusable. Etymologically, contradiction like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the ositoppe”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point.

However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case. See Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127.
The learned appellant’s counsel identified some portions of the evidence of the respondent’s witnesses, PW1 and PW2, that were plagued by contradictions, videlicet: (a) That

the PW1 testified that she lay face down, and at the same time saw the appellant’s face when he removed his mask. (b) That PW2 testified that he hid himself in the inner store in the kitchen and saw, through a crack on the wall, all that happened and saw the appellant’s face when he removed his mask.
I have, in total allegiance to the dictate of the law, situated these highlighted areas in the respondent’s evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if those pieces of evidence are soiled by contradictions. In the first place, I am unable, with due reverence to categorise those x-rayed pieces of evidence as falling within the perimeter of the nomenclature of contradiction. None of them affirms the opposite of the other. Each piece rather follows the other sequentially. They are not a classic exemplification of contradiction. Perhaps, the learned appellant’s counsel meant the evidence had/have no taste of veracity.
For the purpose of ex abundanti cautela, let me handle those pieces of evidence chronicled above as allegation of contradiction. In this wise,

to my mind, these are pockets of infinitesimal differences in evidence that do not, in the least, qualify as material contradictions.
They are rather discrepancies that are impotent to ruin the pungent evidence of the respondent professed by PW1 and PW2. The law embraces discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”. See Eke v. State (supra) at 665, per Fabiyi, J.S.C.; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that minute differences in the narration of evidence attest to the veracity of the witnesses on the point.
At any rate, the law grants witnesses the unbridled licence to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-a-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be

guilty of evidential tutorage. See Egwumi v. State (2013) 13 NWRL (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phantom or non-existent contradictions.
In the light of this brief legal anatomy on contradictions, done in consonance with the law, the lower Court’s finding of want of contradiction/inconsistency in the evidence of PW1 and PW 2 is unassailable. The finding has not, in the least, fractured the adjectival law to warrant the intervention of this Court. It will smell of judicial sacrilege to tinker with a finding that has not demonstrated any hostility to the law. I join the lower Court to acquit the evidence of contradiction. In the end, I have no choice than to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The meat of the issue is simple and falls within a lean scope. It castigates the lower Court’s finding on the defence of alibi raised by the appellant.

As a necessary prelude, an alibi means

“elsewhere”. It is a defence which absolves an accused of an offence. An accused who wishes to take refuge under the defence is expected to raise it timeously, at the earlier opportunity of his contact with the investigating security agencies, with the necessary particulars of his whereabouts and those with him on the day of the incident. Thereafter, the duty shifts to the prosecution to investigate the alibi and affirm or disprove it. It is destroyed by contrary evidence fixing the appellant at the place of the crime. If it is disproved, the defence fails and vice versa. See Eke v. State (supra); Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Ebri v. State (supra); Sunday v. State (2010) 18 NWLR (Pt. 1224) 223; Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Agboola v. State (2013) 1 NWLR (Pt. 1366) 619; Victor v. State (2013) 12 NWLR (Pt. 1369) 465; Egwumi v. State (supra); Ayam v. State (2013) 15 NWLR (Pt. 1376) 34; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Wisdom v. State (2017) 14 NWLR (Pt. 1586) 446; Agu v. State (supra); Adelani v. State (2018) 5 NWLR (Pt. 1611) 18; Adegbite v. State (2018) 5 NWLR

(Pt. 1612) 183; State v. Isah (2019) 1 NWLR (Pt. 1652) 139; Sale v. State (2020) 1 NWLR (Pt. 1705) 205.
Now the appellant’s extra-judicial statement to the police is wrapped at page 17 of the record. It was admitted as Exhibit 5 through the PW3, the Investigating Police Officer (IPO). I have given a microscopic examination to it. This is because, in the eyes of the law, it is the appropriate forum for the appellant to indicate his whereabouts to the police on the fateful day-date of commission of the offence. At the bottom of page 17 of Exhibit 5, the appellant volunteered to the police: “The day of this incident I was already at Abeokuta to do “shara” for my late mother i.e., my late mother remembrance…” This is a quintessence of raising the defence of alibi.
Nevertheless, the appellant has only scored a barren victory having regard to nature of the alibi. The reason is not far-fetched. The defence was/is nude in that it was/is void of particulars. It is a common knowledge that places in cities are identified with streets or areas of location. This fact “is not reasonably open to question” and I take judicial notice of it by virtue of

Section 124 of the Evidence Act, 2011. The appellant ought to have furnished the police with his specific place of abode in the large cosmopolitan city of Abeokuta. In the glaring absence of those particulars, which were/are desiderata in alibi investigation, the police would be engaged in a wild goose chase. Where would the police have gone to make the investigation? Who would they have approached for necessary information about the appellant? A police officer, no matter his investigative dexterity and prowess is totally divorced from being a spirit. Admirably, there is no evidence on record which invested him with that invisible status. The appellant, in his infinite wisdom was stingy in presenting the necessary particulars of his residence and cohabitants to enable the respondent investigate the alibi. Put bluntly, lack of promptitude and paucity of particulars constituted a serious coup de grace to the defence of alibi invented by the appellant. In effect, the alibi is a pseudo-defence, fabricated by the appellant, to escape the trap of justice.
That is not all. The DW1 and DW2 testified in appellant’s defence. DW1 was his tenant. He testified

that he called the appellant and he told him that he was in Abeokuta. DW2, his sister testified that he was in Abeokuta on the day of the robbery incident. Firstly, their evidence still suffers the disease of dearth of particulars like Exhibit 5. Secondly, even if their viva voce testimonies disclosed sufficient particulars, his alibi was invoked belatedly. At the point of raising, it by the DW1 and DW2, the case was almost at the verge of conclusion. It would have been incongruous for the respondent to commence an investigation of the appellant’s alibi at that point and possibly discharge their duty of neutralising it. Curiously, their extra-judicial statements were not in evidence. That would have availed the police the earliest opportunity to investigate the appellant’s alibi.
In any event, it will unveil in the fullness of time in this judgment that the evidence of PW1 and PW2 located the appellant at the locus criminis on the date of the commission of the offence – 30th November, 2013. In the mind of the law, such a fixture demolishes and banishes the defence of alibi and renders it lame. It cannot fly. SeeOnuchukwu v. State (1998) 4 NWLR (Pt. 547)

576; Balogun v. A-G., Ogun State (2002) 6 NWLR (Pt. 763) 512; Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375.
In the interest of completeness, the learned appellant’s counsel placed high premium on the Supreme Court decision in Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375. Learned counsel, seriously, implored this Court to follow the decision. In due loyalty to the command of the law, I have perused the decision in Idemudia case with the finery of a toothcomb. In Idemudia case, the petition that ignited it came one year after the commission of the alleged offence. The police recorded the extra-judicial statement of the appellant’s elder brother who confirmed the alibi raised by the appellant. There was no pungent evidence of location of the appellant at the locus actus. In the case in hand, there was prompt report of the incident to the Police at Shasha Police Station. It was followed by a petition which led to the transfer of the case to SARS, Ikeja, Lagos. The appellant, in Exhibit 5, starved the police of the particulars of the place he domiciled in Abeokuta. There were no extra-judicial statements made to the police by DW1 and DW2. There was

impregnable evidence that fix the appellant at the locus delicti. Thus, the facts of Idemudia case are totally incompatible/disharmonious with those of this appeal. The importance of facts in the determination of cases cannot be over-emphasised. Facts are the forerunners and arrowhead of the law. They act like magnets with the potential to completely turn around the fortune or misfortune of a case. They define the success or failure of cases. In the Roman days of the law, they were couched as: Ex facto oritur jus – law has its offspring on the fact. See A.-G., Anambra State v. A.G., Fed. (2005) 131 LRCN 235 at 2426/(2005) 9 NWLR (Pt. 931) 572 at 638 – 639, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365. The ancient doctrine of stare decisis, which was invented to ensure certainty in law, and which should compel me to apply Idemudia case, thrives where facts of cases are in pari materia. It is idle where the facts of cases are not on all fours. Since the facts of the two cases are distinguishable, the law does not grant me the nod to kowkow to the decision in Idemudia case. I am therefore impelled by law to decline the appellant’s inviting

request on the footing of facts differential. The lower Court did not defile the law when it declined similar invitation.
Flowing from the above legal dissection, the lower Court’s finding that the appellant’s alibi was “rather scanty and low on details” and displaced/deflated by the evidence of PW1 and PW2 is an immaculate one. It is totally in sync with the law. In effect, all the diatribes which the appellant rained against the solemn finding, peter into significance. I endorse, in toto, the finding. The defence of alibi, invented by the appellant to emasculate the charge is disabled from birth. In the result, I will not hesitate to resolve the issue two against the appellant and in favour of the respondent.

It remains to settle issue three. The mainstay of the issue submits to easy appreciation. It queries the propriety of the lower Court’s conviction of the appellant for the offences in the face of the evidence before it. The appellant’s quarrel centred on his conviction for the substantive offence of armed robbery and conspiracy.

By way of prefatory remarks, it is important to appreciate the import and features of the substantive

offence, armed robbery, which was levelled against the appellant. In law, robbery means stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the things stolen or to prevent or overcome resistance to its being stolen or retained. Where the robbery is accompanied by the use of firearm or offensive weapon, which causes or attempts to cause any person’s death or hurt or unlawful restraint or fear, it transfigures into an armed robbery. See The State v. Yamusissilka (1974) 6 SC 53 at 62; Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209.

Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170; Abdullahi v. State (2008) 17 NWLR (Pt. 115) 203; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Sale v. State (2016) 3 NWLR (Pt. 14499) 392; Ayo v. State (2016) 7 NWLR (Pt. 1510) 183; Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Akwuobi v. State (2017) NWLR (2017) 2 NWLR (Pt. 1550) 421; State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Amadi v. A.G., Imo State (2017) 11 NWLR (1575) 92; Adelani v. State (2018) 5 NWLR (Pt. 1611) 18; Lawali v. State (2019) 4 NWLR (Pt. 1663) 457.

Conspiracy is a confederacy, or an agreement, between at least two persons with the aim of committing unlawful or criminal act or doing a lawful act by an illegitimate means. Being an agreement,

express or implied, it takes at least two persons to conspire, id est, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to its usual clandestine nature, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from the proved acts of the conspirators in evidence. Such circumstantial evidence often as good as direct evidence must be cogent, consistent and irresistibly point to the guilt of the conspirators. In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime. See Ojo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366) 668; Clark v. State

(1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt. 1) 6; Okeke v. State (1992) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (1973) 5 SC 17/(1973) 1 NMLR 331/(1975) LPELR – 2042 (SC); Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147; Adoba v. State (2018) 12 NWLR (Pt. 1633) 236; Yahaya v. State (2018) 16 NWLR (Pt. 1644) 96; Saminu v. State (2019) 11 NWLR (Pt. 1683) 254.

NWLR (Pt. 1534) 126; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391.

In due obeisance to the desire of the law, I have consulted the record; the bible of every appeal. My port of visit is the residence of the parol evidence of PW1 – PW3 which colonise pages 25 – 36 of the record. A précis of the evidence on record is that on the 30th November, 2013, 3-man gang of marauders, using axe, broke and gained entrance into the house of Ninalolu Olanipekun Sherifat, PW1 (the victim) at No. 12 Lawal Street, Egbeda, Akowonjo, Lagos, around 2am. They were wearing masks. They commanded her to lie face down. They ransacked her house, carted away her jewelry, laptop, phone and money. One of them called the appellant by his name: Akeem. The appellant got infuriated and removed his mask. They shot the victim on the shoulder and gave her matchet cuts on the head. The son of the victim, Abiodun Olanipekun, PW2, who hid himself in an inner store peeped from his hideout and observed/witnessed all that happened. He saw

the appellant, who he regarded as his uncle, when he removed his mask. He was wearing jean and shirt. He saw him quizzing the victim, his mother.

When these pieces of concrete evidence are pieces/pooled together, their progeny is obvious. They amply demonstrate that there was robbery on 30th November, 2013 at the aforementioned premises. The invaders/robbers were armed with gun, axe and matchet. In the eyes of law, these clubs come within the four walls of weapons as decreed by law. They used those weapons to threaten, propagate fears into the victim and hurt the victim who was rattled to the point of compliance with the orders dished out by them. Thus, it was an armed robbery operation. The evidence of PW2, even in the heat of cross-examination, unveiled the prominent role played by the appellant who was attired in jean and shirt. He was, on the footing of the evidence, like the generalissimo of the banditry. The evidence disclosed that as long as the inglorious operation lasted, there was light in the parlour, the hot spot of the crime. The PW2 had the rare opportunity of close observations of the appellant who had close contact/acquaintance with him

as an uncle. The robbers had a field day as the alarm raised by PW1 and PW2 could not attract any assistance from their neighbours.

In another spirited bid to deflate the lower Court’s decision, learned counsel for the appellant decried the identification evidence of the appellant. In the sight of the law, identification evidence is that which tends to demonstrate that the accused person, charged before the Court, is the same person who was at the locus in quo during the commission of the offence. See Nwaturuocha v. State 6 NWLR (Pt. 1242) 170; State v. Salawu (2011) 18 NWLR (Pt. 1279) 580; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619; Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Ajayi v. State (2014) 14 NWLR (Pt. 1426) 1; Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Akindipe v. State (2016) 15 NWLR (Pt. 1536) 470; Akinriolola v. State (2016) 16 NWLR (Pt. 1537) 73; State v. Yahaya (2019) 13 NWLR (Pt. 1690) 397; Philip v. State (2019) 13 NWLR (Pt. 1690) 509.

Identification is critical in criminal trials. When it is in issue and it is not proved, particularly in armed robbery allegation, then the

offence is not proved and the accused person will be entitled to an acquittal. See Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Fabiyi v. State (2015) 18 NWLR (Pt. 1490) 80; Ogu v. C.O.P. (2018) 8 NWLR (Pt. 1620) 134; Egbufor v. State (2019) 5 NWLR (Pt. 1665) 260.

In view of its Olympian status, whenever the case against an accused person turns, wholly or substantially on the correctness of his identification and the defence erects the defence of mistaken identity, the law commands and makes it incumbent on the Court to examine the evidence closely. In doing so, any real weakness discovered in it must lead to giving the accused person the benefit of doubt. See The People of Lagos State v. Umaru (supra); Afolabi v. State (2013) 13 NWLR (Pt. 1371) 292; Pius v. State (2016) 9 NWLR (Pt. 1517) 341; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140.

In order to guard against cases of mistaken identity by an eye witness, the Court must consider meticulously the following: (1) Circumstances the eye witness saw the suspect or accused person. (2) The length of time the eye witness saw the suspect or accused person.

(3) The lighting conditions. (4) The opportunity of close observations. (5) The previous contact between the witness and the accused person. See Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633; Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663; Adesina v. State (2012) 14 NWLR (Pt. 1321) 429; Sale v. State (2016) 3 NWLR (Pt. 1499) 392; Friday v. State (2016) 16 NWLR (Pt 1538) 242; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; State v. Yahaya (supra). I will employ these elements of identification evidence as the yardstick to gauge the proof or disproof of the identity of the appellant vis-a-vis the commission of the offences levelled against him.

It can be gleaned from the pieces of evidence, professed by PW1 and PW2, extracted and displayed above, that one way they identified the appellant was by recognition premised on visual identification. Indeed, visual identification has taken root as a mode of identifying culprits in our criminal justice system. In Adeyemi v. State (1991) 1 NWLR (Pt. 170) 679 at 694/(1991) 2 SCNJ 60 at 71 Olatawura, J.S.C., of the blessed memory, confirmed:
It is fallacious to think the only identification of an accused person

acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial judge from accepting his evidence.
See also Otti v. State (1993) 5 SCNJ 143/(1993) 4 NWLR (Pt. 290) 675; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Ukpabi v. State (2004) 11 NWLR (Pt. 884) 439; Ochiba v. State (supra); Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1; Ajayi v. State (supra); Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Isong v. State (2016) 14 NWLR (Pt. 1531) 96; Okashetu v. State (supra); Kekong v State (2017) 18 NWLR (Pt. 1596) 108; Isah v. State (2018) 17 NWLR (Pt. 1647) 140. Specifically, the law sanctions recognition by face. See Ikpo v. State (supra); Salau v. State (2019) 16 NWLR (Pt. 1699). Identification by one witness is sufficient in law. SeeOchiba v. State (supra).
The magisterial pronouncements, in those ex-cathedra authorities, with due reverence, drown the scintillating argument of the appellant on his

identity. The manner of identification, visual recognition offered by the respondent, extinguishes the defence of mistaken identity contrived by the appellant to hoodwink the Court. On the footing of the pungent evidence, chronicled above, the appellant was a patticeps criminis in the alleged offence of armed robbery.

It admits of no argument that the evidence, on record indicated that the armed culprits were three in number. In point of fact, evidence of this galore. Conspiracy, decipherable from its already displayed characteristics, is majorly probable by inference. In law, inference is: “A conclusion reached by considering other facts deducing a logical sequence from them”. See Muhammed v State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, J.S.C. The law gives the Court the wide latitude to draw inferences. See Babatunde v. State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v C.O.P. (2015) 15 NWLR (1483) 557, Morah v. FRN (2018) 15 NWLR (Pt. 1641) 60. The philosophical basis of inferential mode of proof is not far-fetched. There is no art to find the mind’s construction in the face. Even clairvoyants cannot forecast accurately the intent of a man. Even

“the devil himself knoweth not the intention of a man”. See Peter v. State (2018) 13 NWLR (Pt. 1635) 1. In my humble view, the fact that the armed robbers were three is a classic testimony of conspiracy. This is because, the only irresistible inference that germinates therefrom is that the members of the gang had previously agreed to execute the robbery operation. In effect, the appellant conspired with his co-recidivists, who are now fugitives from justice, to commit the foul crime of armed robbery.

There is no gainsaying the fact that the lower Court heavily relied on the oral evidence of PW1 and PW2 in relation to the proof of the two offences; armed robbery and conspiracy. The act of reliance on them is deeply founded in the corpus of our criminal jurisprudence. Both were eye witnesses to the incident of robbery. Indisputably, the PW1 was the victim of the crime. The law now treats and ascribes to the evidence of a victim as that of an eye witness. See Giki v. State (2018) 6 NWLR (Pt. 1615) 237; Chidozie v. COP (2018) 6 NWLR (Pt. 1615) 373; Ogu v. COP (2018) 8 NWLR (pt. 1620) 134. In the mind of the law, an eye witness connotes a person who can

testify as to what he has seen from personal observation. See Ude v. State (2016) 14 NWLR (Pt. 1531) 122. The evidence of an eye witness, as already noted, qualifies as one of the three ways to prove commission of a crime. An eye witness testifies to what he has seen or observed personally from any of his senses. It ranks second in the methodical ladder of proof of crimes. It concedes the first rung to confession. Thus, the eye witness evidence, offered by PW1 and PW2 amply demonstrate that the appellant partook in the commission of the offences. These hallowed principles of law, which have acquired the enviable status of notoriety and solidified by the evidence, frontally make mincemeat of the suspicion which the appellant brandished and paraded as an indefeasible defence that will fetch him a discharge. In point of fact, the defeasible defence is a concocted one in the presence of the cogent eye witness evidence of PW1 and PW2. The appellant cannot harness from the beneficent defence of suspicion.

My noble Lords, it stems from this legal anatomy of evaluation of evidence, that the respondent proved the necessary ingredients of the offences preferred

against the appellant beyond reasonable doubt as decreed by Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt. See Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1.
In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”. SeeMaigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpates the appellant, as one of the perpetrators of the offences charged is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it. See Olatunbosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287.

Flowing from the above juridical survey, the lower Court did not offend the law when it found ultimately that the respondent proved beyond reasonable doubt the two offences of armed robbery and conspiracy to commit armed robbery laid against the appellant. The lower Court acted ex debito justitiae and the finding is unimpeachable. On this score, l therefore, with due respect, dishonour the learned appellant’s counsel’s salivating solicitation to sacrifice the finding/decision on the undeserved altar of improper/perfunctory evaluation of evidence for want of legal justification. In all, I have no option than to resolve the issue three against the appellant and in favour of the respondent.

On the whole, having resolved the three issues against the appellant, the fortune of the appeal is obvious. It is devoid of any morsel of merit and liable to the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 18th March, 2019.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother, OBANDE FESTUS OGBUINYA, J.C.A., dismissing the

appeal and I agree with my learned brother’s reasoning and conclusions. I wish just to say a word or two on the defence of alibi raised by the appellant. In raising the defence of alibi, it is not enough for an accused person to simply say that he was elsewhere at the time of the commission of the offence for which he is charged. He must give sufficient particulars of his whereabouts at the time, sufficient enough for a diligent investigator to carry out an investigation as to the veracity of his claim of being in that other place at the time the crime was committed. See OBIODE V STATE (1970) 1 ALL NLR 35; OZAKI V. STATE (1990) 1 NWLR (Part 124) p. 92 at p. 96. For the appellant to simply say that he was in Abeokuta is not enough to raise a valid defence of alibi. Abeokuta is a sprawling City, the capital of Ogun State of Nigeria. The particulars that the law expects of the appellant in order to raise a proper defense of alibi include the address in Abeokuta he claimed that he was at the time, and sufficient and reasonable particulars of those who saw him there. Where such particulars are given, it becomes the duty of the prosecution to disprove the alibi.

See OZAKI V. STATE (supra) p. 97. Since no such particulars were given, there was no defence of alibi properly so-called, worth investigating by the prosecution.

Having said these few words in support of the lucid ones stated by my learned brother on the issue of alibi, I will end by simply stating that the appeal has no merit. It is therefore dismissed.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance, a draft copy of the lead judgment of my Learned Brother, OBANDE FESTUS OGBUINYA, J.C.A., dismissing this appeal. I agree with the reasoning and conclusions therein, which I adopt as mine. I will only make few comments in support.

It is settled law that only material discrepancies, which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice, will impact negatively on the case of the party who relies on such evidence. Therefore, the contradiction in the testimony of a witness, which will be fatal to the case of the prosecution, must be substantial and must go to the root of the charge before the Court. It must be one that

touches an important element of what the prosecution needs to prove in the case. See Princent & Anor v. The State (2002) LPELR-2925(SC); Dibie & ors v. State (2007) LPELR-941(SC); Ochani v. The State (supra); Ukpong v. The State (2019) LPELR-46427(SC). Minor discrepancies that do not affect the credibility of a witness may not be fatal. See Uche v. State (2015) LPELR-24693(SC); Idi v The State (2017) LPELR-42587(SC). The Appellant herein has shown no material contradictions in the evidence of the prosecution, as relied upon by the learned trial Judge to justify the intervention of this Court.

Further, when an accused person relies on the defence of alibi, he is simply saying that he was not at the scene of the crime when the offence for which he is charged was committed. It is the duty of the accused person at the earliest opportunity to raise this defence and to furnish the investigating authorities with comprehensive details of his whereabouts on the day the offence was committed. The defence of alibi must be precise and specific in terms of the place that the accused person was, person(s) that he was with, and possibly what he was doing at the

material time. This is to ensure that the investigating authorities are not sent on a wild goose chase; Ochemaje v. State (2008) LPELR-2198(SC), (2008) 15 NWLR (Pt. 1109) 57; Ebre & ors v. The State (2001) LPELR-995(SC); Ikumonihan v. State (2018) LPELR-44362(SC); Adegbite v. The State (2017) LPELR-42585(SC). Once this is done, the onus is on the prosecution to investigate the alibi, and the standard of proof required to establish the defence of alibi is one based on balance of probabilities.
The information presented by the Appellant to ground his purported alibi was grossly insufficient and too scanty to enable any reasonable investigation to be conducted by the police, more so when the evidence of the eye witnesses PW1 and PW1 placed the Appellant squarely at the locus criminis.

For these reasons and for the more comprehensive reasons given in the lead judgment, I also dismiss this appeal and affirm the judgment of the lower Court.

Appearances:

O. Adebayo, Esq. For Appellant(s)

O. Adeyemi, Esq., Director of Public Prosecution, Ministry of Justice, Lagos State For Respondent(s)