LEGI MOHAMMED v. THE STATE (2014)

LEGI MOHAMMED v. THE STATE

(2014)LCN/7647(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of December, 2014

CA/IL/C.46/2014

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN A CRIMINAL TRIAL
It is the duty of the prosecution to prove the guilt of the accused in a criminal trial, beyond reasonable doubt. This implies that sufficient, credible and admissible evidence must be adduced to establish ingredients of the various offences charged as in this case. The burden is a heavy one on the prosecution, while proof beyond all shadow of doubt is not required. See, OKPULOR VS. STATE (1990) 7 NWLR (PT.164) 581 AT 593, ODUNEYE VS. STATE (2001) 2 N.W.L.R. (697) PAGE 311 AT 327, ADEPETU vs. STATE (1998) 9 N.W.L.R. (Pt.565) 185 AT 213 and THE STATE vs. AJIE (2000) 11 N.W.L.R. (PT.678) 434; (2000) 8 W.R.N. 1 S.C. per. CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT OF THE OFFENCE OF ARMED ROBBERY

Without doubt the ingredients that must co-exist to prove the offence of armed robbery are as follows:
(a) There must have been a robbery
(b) The robbery was armed; and
(c) The accused (Appellant in this case) is the robber.
Where these are not proved beyond reasonable doubt the appellant would be entitled to an acquittal, see, BOZIN vs. THE STATE (1995) 2 N.W.L.R, (PT.8) 465. per. CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT THE PROSECUTION MUST PROVE FOR A CONVICTION OF CONSPIRACY

The prosecution must prove the following for a conviction of conspiracy:
(a) An Agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal, by illegal means;
(b) Individual participation in the conspiracy by each of the accused persons. per. CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: CONSPIRACY; HOW IS CONSPIRACY PROVED
Conspiracy is seldom proved by direct but, circumstantial evidence and inference from proved acts. There need not be direct communication between the conspirators but, the important thing is the common design. There must be acts common to both that they had a common design, see, THE STATE VS. OLASHEHU SALAWU (2011) LPELR – 82 52 (SC); AFOLABI v. THE STATE (2013) LPELR – 20700 (SC) and ODUNEYE VS. THE STATE (2001) 2 NWLR (PT.697) 311 AT 324. Where His Lordship, Achike, JSC (as he then was) defined the nature of conspiracy as follows:
“Conspiracy is not defined under the Criminal or Penal Code. But, perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of the fact in issue but of other facts from which the fact in issue can be inferred.” per. CHIDI NWAOMA UWA, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI: THE MEANING OF ALIBI AND THE BURDEN OF ADDUCING OR ELICITING SOME EVIDENCE TO PROVE ALIBI

. The word “alibi” means “elsewhere” it is a matter peculiarly within the knowledge of the accused person. If he was at some particular place other than where the prosecution says he was at any material time, that is the “evidential value”, that is the burden of adducing or eliciting some evidence to show this, rests on him. See, GACHI VS. STATE (1965) NMLR 333 AT 335, YANOR VS. STATE (1965) 1 ALL N.L.R. 193; SAKA VS. STATE (1980) N.C.R. 309 AT 322 AND 328. In NWABUEZE VS. THE STATE (19880 4 NWLR (PT.86) 16 the Apex court emphasised that the defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of Criminals in that an accused person has a great duty to discharge rather than merely asserting that he was elsewhere at the time the offence was committed. He is duty bound to furnish the necessary information from which his where about at the crucial time could be checked. Where he fails to discharge that basic duty he cannot avail himself of the defence. See, OBAKPALOR VS. THE STATE (1991) 1 NWLR (PT.165) 113; (1991) 1 S.C.NJ. 91; 106 – 107; and OGOALA VS. THE STATE (1991) 3 SCNJ 61; 67 – 68 (1991) 2 NWLR (PT.175) 509. per. CHIDI NWAOMA UWA, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

LEGI MOHAMMED Appellant(s)

AND

THE STATE Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Appellant herein was sentenced to death on the 13th day of November, 2013 by the Kwara State High Court presided over by H. R. Saleeman, J. for the offences of Conspiracy and Armed Robbery contrary to Section 97 of the Penal Code and Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of the Federation of Nigeria, 2004.

The background facts are that the Appellant was arrested at Aderan Village and taken to the State CID where he was said to have made a statement in Hausa but recorded in English by one Dada Segun (Force No.171748 SGT) of the Criminal Investigation Department of the State CID Ilorin, he was the IPO as well as the interpreter to the Appellant, also the recorder who testified as PW5. Exhibit 5 is the statement of the Appellant, pages 9 – 10 of the records of appeal. The Appellant was said to have been arrested seven months after the crime was committed. Exhibit 5 showed that the Appellant voluntarily confessed to having attacked the three victims at Banni-Lele Road, close to Elere Village in concert with one Abu Mohammed who was the co-accused that was charged to court with him. The Appellant was alleged to have forcefully collected the sum of N20,000.00 from one of the victims. The Appellant was said to have been wounded on the head by one of the victims.
The Appellant made out that he was not in town when the crime was committed and that he was arrested while returning from Dagi near Jebba where he lived and taken straight to the State CID in Ilorin. He denied knowing his co-accused.
The two witnesses during trial (victims) testified as PW3 and PW4 while the third victim Fatai, died. The Appellant’s version of the allegation against him is that according to the PW3, the appellant’s co-accused Abu Mohammed attacked the victims while the Appellant removed money from his pocket. The PW3 asserted that his hand was cut off. The deceased brother, Fatai dispossessed the Appellant’s co-accused of the cutlass which resulted in a fight in which Fatai lost his life.
The Appellant challenged Exhibits P1 and P2, the cutlass and stick respectively, allegedly used to commit the offence as no forensic analysis was carried out. The Appellant denied being at the scene or connected with the crime. It was contended that the Appellant’s defence of alibi was not investigated.

In the Appellant’s appeal against the decision of the trial court, a sole issue was distilled for determination by this court, that is:
“Whether the prosecution was able to establish a prima facie case of criminal conspiracy and Armed Robbery against the Appellant beyond reasonable doubt, to warrant the verdict returned by the Lower Court and the consequent sentence which followed?”

The Respondent on its part adopted the sole issue formulated for determination by the Appellant.

When the appeal was argued the learned counsel to the Appellant Ms Toyin Bashorun adopted and relied on her brief of argument filed on 28/3/14 and a reply brief filed on 25/6/14 in urging us to allow the appeal. It was submitted that the burden of proof in any criminal trial is proof beyond reasonable doubt and not beyond any shadow of doubt, see, BAKARE VS. THE STATE (1987) 1 NWLR (PT.52) 529; (1987) 3 SC 1; AT 33 AND SEBASTINE MARTINS AND ANOR VS. STATE (1997) 1 NWLR (PT.481) 355 AT 367 PARAGRAPH F.

It was alleged that apart from Exhibit 5 the alleged confessional statement of the Appellant there was no evidence of what was stolen or robbed from PW3, and that the PW3 and PW4 only said they, were attacked. Further, that it was not established that the appellant was a robber. It was argued that there ought to have been forensic examination of all the materials connected with the crime so as to connect the Appellant with handling any of these.
It was submitted that the appellant who was arrested over six months after the incident raised the defence of alibi which was not investigated, see, SHEHU VS. THE STATE (2010) 3 MJSC (PT.11) 75 AT 103 PARAGRAPH C. Further, that the evidence of the PW7 (a vigilante) did not touch on the Appellant but centred only on the Appellant’s co-accused Abu Mohammed. Also, that Exhibit P3, the confessional statement of the co-accused which was retracted, was not endorsed by a Superior Police Officer (SPO) and that the trial court ought to have cautioned itself before utilizing same, see, USMAN VS. THE STATE (2010) ALL FWLR (PT.542) 1691. The learned counsel to the Appellant faulted the method of comparing the thumb-print on Exhibit p3 and the one made by the Appellant’s co-accused in open court.

It was the contention of the learned counsel to the Appellant that there was no concert between the Appellant and his co-accused, see, YAHAYA BARBA V. COMMISSIONER OF POLICE (2007) 16 NWLR 378 AT 405 PARAGRAPHS A – B. The Appellant was argued to have denied Exhibit P3 made by his co-accused which implicated him, see OLA-OLU TITILAYO AND ORS VS. THE STATE (1998) 2 NWLR (Pt.537) 235 at 243 – 244 PARAGRAPHS G – A, D. ALSO, R VS. AJANI (1936) 3 WACA 3; AND OZAKI VS. STATE (1990) 1 NWLR (PT.124) 92.
It was the submission of the learned counsel that the only thing fixing the Appellant as being one of the robbers is Exhibit P3 the confessional statement of the co-accused and that the victims could not pin point the Appellant as one of the robbers. Ms Bashorun argued that there was no other reasonable inference that could be drawn from the circumstantial evidence pointing to the fact that the Appellant was guilty of the offences charged. We were urged to allow the appeal and discharge the Appellant.

On the part of the respondent, the Honourable Attorney General of Kwara State, Kamaldeen Ajibade Esq. appearing with O. S. Balogun, Senior State Counsel Kwara State Ministry of Justice, adopted and relied on the respondent’s brief of argument filed on 2/5/14 in urging this court to dismiss the appeal.
It was submitted that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt, see, MILLER VS. MINISTER OF PENSION (1947) 2 ALLER 372 AT 373 H, LORI VS. THE STATE (1980) 8 – 11 S.C. 81 AT 99 and AKALEZI VS. THE STATE (1993) 2 NWLR (PT.273) 1 AT 13 CD.
The learned Attorney General was of the view that the Appellant was not convicted solely on Exhibit P5 but that the Lower Court also considered the evidence of eye witnesses, the victims of the robbery attack, which is one of the ways to prove the guilt of an accused, see, EMEKA VS. STATE (2001) FWLR 682 AT 685 AND OKA VS. STATE (1975) 9 – 11 SC 17. Stating the exact amount robbed from the victims was said not to be a necessity before a robbery charge could succeed, proof of theft of money in cause of a robbery operation was said to be all that was required. PW3 was argued to have shown that he was robbed along with others and their sales proceeds taken away. It was the contention of the learned Attorney General that the arrest of the Appellant was effected not long after the commission of the Robbery and not in doubt that two people carried out the attack.
Further, that on the arrest of the 1st accused person, he mentioned the appellant as a co-conspirator. The Appellant was said not to have been at his residence until the 25th day of July, 2012 when he was arrested and he made a confessional statement. It was argued that the defence of alibi was not raised at the earliest opportunity to enable the police investigate same, see, EBENECHI VS. STATE (2009) 2 – 3 MJSC 138 AT 143.

It was emphasized that Exhibit P3 was made by the Appellant in course of the investigation. Also, that the fact that an accused retracted his confessional statement does not mean that the court cannot act on it and convict if it is justified, see, GABRIEL VS. THE STATE (2010) 6 NWLR (PT.1190) 280 AT 290, SHOLA VS. THE STATE (2005) 11 NWLR (PT.937) 460 and NWACHUKWU VS. THE STATE (2002) 12 NWLR (PT.782) 543.
On taking a confessional statement to a Superior Police Officer, it was argued that it is not a rule of law before an accused could admit or deny same, see, SOLOLA VS.. STATE (SUPRA), R VS, OMEREWUFE SAPELE (1957) 2 FSC 24.

The learned Attorney General was of the view that the method used by the Lower Court on comparing the thumb prints in the retracted statement was proper. See, AJALA VS. THE STATE (1979) 10 CA 115, COP VS. OGECHUKWU (1974) ECSLR 1478 and THE QUEEN VS. WILLCOX (1961) 2 SC NLR 296.
On conspiracy, it was emphasised that it can be deduced from inferences, from the conduct of the parties to a criminal conspiracy, it could be inferred, see, OSUAGWU VS. THE STATE (2009) 1 NWLR (PT. 1123) 523 AT 544 PARAGRAPHS F – G. It was submitted that the contents of Exhibit P3 where the 1st accused person implicated the 2nd accused with the confession of the crime in Exhibit P5 by the appellant are enough to prove criminal conspiracy. It was the contention of the respondent that all the chain of circumstances point to the guilt of the accused persons that they conspired to commit armed robbery contrary to Section 97 of the Penal Code, see, ADEPOJU VS. STATE (1998) 9 NWLR (PT.565) 185.

Exhibit P5 was said to have been corroborated by the evidence of the victims, PW3 and PW4 who identified the appellant as their attacker who was armed with a cutlass, robbed them of their money. Mr. Ajibade stressed that the offences charged were proved beyond reasonable doubt and the Lower Court right to have convicted the appellant and his co-accused. We were once again urged to dismiss the appeal and affirm the judgment of the Lower Court.

In reply to the argument of the learned Attorney General, Ms Bashorun raised the issue of the identity of one of the alleged victims. It was questioned whether Saadu Babatunde mentioned by PW3 was the same as Saadu Qudri who testified as the PW4. It was alleged that this issue of identity was never resolved nor addressed throughout the proceedings.
The evidence of the victims PW3 and PW4 requiring corroboration was reargued as well as the comparison made of the thumb prints on the confessional statements and the one made in open court by the appellant. The evidence of the PW7 was said to be hearsay and ought not to have been relied upon by the trial court, at worst where admitted should be discountenanced or expunged.
We were once again urged to allow the appeal discharge and acquit the appellant.

The sole issue in a nutshell is whether the prosecution discharged the burden of proving the, case against the appellant and his co-accused beyond reasonable doubt as enjoined by Section 139(1) of the Evidence Act to warrant the conviction and sentence of the appellant as found by the trial court. Section 139(1) and (2) of the Evidence Act, 2011 provides as follows:
“139(1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exemption from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this part upon a defendant charged with a criminal offence shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether on cross – examination or otherwise, that such circumstances in fact exist.”
While Section 135 provides thus:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
It is the duty of the prosecution to prove the guilt of the accused in a criminal trial, beyond reasonable doubt. This implies that sufficient, credible and admissible evidence must be adduced to establish ingredients of the various offences charged as in this case. The burden is a heavy one on the prosecution, while proof beyond all shadow of doubt is not required. See, OKPULOR VS. STATE (1990) 7 NWLR (PT.164) 581 AT 593, ODUNEYE VS. STATE (2001) 2 N.W.L.R. (697) PAGE 311 AT 327, ADEPETU vs. STATE (1998) 9 N.W.L.R. (Pt.565) 185 AT 213 and THE STATE vs. AJIE (2000) 11 N.W.L.R. (PT.678) 434; (2000) 8 W.R.N. 1 S.C. The learned counsel to the Appellant agreed to the requirement of the law concerning proof in a criminal case but, added that it excludes unreasonable doubt, fanciful doubt and speculative doubt borne out of the circumstances of the case.

With the offence of conspiracy, (since the appellant was charged along with Abu Mohammed in the Lower Court) it is the duty of the prosecution to establish, without doubt, a meeting of the minds of these accused persons as conspirators, an intention or agreement to do an unlawful act, or to do a lawful act by an unlawful means. The prosecution must prove the following for a conviction of conspiracy:
(a) An Agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal, by illegal means;
(b) Individual participation in the conspiracy by each of the accused persons.

In the present case, did the prosecution prove that there was an agreement between the appellant and his co-accused? Exhibit P5 the confessional statement of the appellant to the Police of 25/7/12 read as follows:
“I have no specific home being a pastoral but I live at Adogun Fulani camp via Aderan. I am a cattle rearer by occupation. I did not attend Western Education. I speaks (sic) Hausa and Fulani language. I am married with a wife and blessed with two children. Actually, I know one Abu Mohammadu that alleged me that (sic) I and himself jointly attacked three Yoruba people who were on motorcycle along Bani/Elere Village road. Sometimes December 2011, I conspired with one Abu Mohammadu ‘M’ of Alege Village and armed our5elves with cutlasses and went to Bani-Lele road very close to Elere Village and attacked three men who were on top of a motorcycle with cutlass. In the process of the robbery, I was wounded on head by one of the victims. I forcefully collected the sum of twenty thousand naira (N20,000.00) from one of the victims. I later escaped from the scene of crime. I did not know the direction Abu Mohammed follow. It was later I heard that he was arrested by vigilante at Aligogo Village when he was receiving treatment.”
While Exhibit P3 made on 30/12/11 by the 1st Accused (Abu Mohammed) read thus:
“I have no specific home being a pastoral, presently I live in Alege village via Bani. I am a cattle rearer by occupation. I did not attend Western Education. I live with the husband of my fate father’s junior sister. It is true that I belong to a gang of armed robbery (sic) that have been terrorizing innocent citizen of Bani environs, The names of my robbery gang are:- (1) Natti Mohammadu (2) Jonoru Surname unknown (3) Bakude Mohammadu and (4) Bube Jiji. On 26/12/11 at about 15.00 hrs I went to Afigogan Village and met one Legi surname unknown and we conspired together to go to Bani/Lefe road to rob the passer bye (sic). We were there where three people were on top of a motorcycle and they were about to cross a stream when I and Legi suddenly emerged from the bush and attack (sic) them with cutlasses. We demanded for money but they did not comply in time from there Legi matcheted one of the victims and as they wanted to struggle with us. I began to matchet them too.
Thereafter, the victims succeeded (sic) to collect my cutlass and they matcheted me on head (sic) and left fingers while I managed to escape from them. I went to Aligogan Village to receive treatment at Abiola’s Clinic. I was receiving the treatment when vigilante men came and apprehended me. It was one Shehu and Chede that took me to the said Clinic. They are my senior brothers and we live in the same camp. I knew that Legi also sustain (sic) injury from the victims but I did not know where he receive (sic) treatment. We could not collect money from them before we attacked them with cutlasses. We taught (sic) that if we matchet one person, the others would surrender their money for us that was why we maimed them.
Exhibits P3 and P5 speak for themselves. The Appellant gave, a clear account of his participation in the offence charged in Exhibit P5, armed robber with his co-accused Abu Mohammed. The argument of Ms. Bashorun that because there was no forensic, medical or any other evidence linking the appellant (with his co-accused) to Exhibits P1 and P2 is not tenable. The appellant and his co-accused while giving oral evidence before the trial court, denied knowing each other, such denial is not enough to say truly that they did not know each other.
Exhibit P5 was voluntarily made and was properly admitted in evidence. The Appellant retracted from same in course of trial, it is immaterial. The confession of the appellant was evaluated with the evidence of the witnesses before the trial court, prosecution and defence witnesses, the evidence of the PW3 and PW4 (victims of the attack) are instructive, also the Pw7. Also, the evidence of the Appellant himself who could not confirm or prove his absence from the scene at the time the incident took place. There is a difference between involuntarily made confessional statement and one that has been voluntarily made. Exhibit P5 falls into the second category where the appellant has not challenged its voluntariness and a trial within trial would not be required as in the former position. The defence of an accused person includes his evidence in court as well as his extra judicial statement despite denial of the latter. A voluntary confessional statement precedes the trial and is also part of the case of the prosecution. The mere fact that the Appellant has retracted same in his oral evidence in the trial court is immaterial, and does not affect its admissibility, the court can act on it, see, OBOSI VS. STATE (1965) N.W.L.R 119; DURUGO V. STATE (1992) 7 NWLR (PTR.255) 525, and EJINIMA VS. STATE (1991) 6 NWLR (PT.1989) 3 NWLR (PT.110) 455. It does not therefore matter that an accused during trial has resiled from his statement to the police or not. Therefore, the submission of Ms Bashorun, that the trial court ought to have cautioned itself and not utilized the contents of Exhibit P5 in convicting the appellant is therefore not in agreement with the correct position of the law. See, the following cases, R. V. OBIASA (1962) 1 ALL NLR 651; ACHABUA VS. THE STATE (1976) 12 S.C. 63 R. V. KANU 14 W.A.C.A. 70, EGBOHONOME VS. THE STATE (1993) 7 NWLR (PT.306) 383, EDHIGERE VS. STATE (1996) 8 NWLR (Pt.464) 1 AT 7; and IHUEBEKA VS. THE STATE (2000) 13 W.R.N. 150 AT 167. The Apex Court in CHUKWUKA OGUDO VS. THE STATE (2011) LPELR (SC), PAGE 51, PARAGRAPHS E – G, His Lordship, MUNTAKA-COOMASSIE, JSC held in respect of an accused person’s retracted statement to the police, thus:
“This court in Idowu vs. The State (2000) FWLR (Pt.16) 2672 at 2703 stated clearly, thus”- “Mere retraction of a voluntary confessional statement by an accused person does not render it in admissible or worthless and untrue in considering his guilt if the confessional statement is satisfactorily proved a conviction founded on it, without more, will be sustained by an appellate court.”
The requirement of the law in respect of a retracted statement is for the trial judge to look for other corroborative evidence outside the retracted statement.

The learned trial judge did not convict the appellant based on Exhibit P5 alone but also considered the evidence of the victims, PW3 and PW4 who gave a clear account of how they were attacked which tallied with the contents of Exhibits P3 and P5 as well as that of PW7 (Lamidi Amosa Olugbangban) at pages 56 – 58 of the records.
In the submissions of the learned counsel to the Appellant, it was argued that there was no forensic or medical evidence that linked the Appellant to the crime since the appellant was not found at the scene of crime and was not linked to the weapons allegedly used, the cutlass and the stick as well as the amputated arm, all found at the scene. What evidence was led by the prosecution concerning these?

PW3 (Mumini Babatunde) a victim of the armed robbery incident testified that he and his two brothers were attacked when they were returning from Banni market to sell their yams, to Onipede, their village and were attacked at about 6.00pm while all three of them were on a motor cycle as they approached Odo Erere, he testified as follows:
“These two accused before the court suddenly appeared from the bush and started to matcheted (sic) our body with cutlasses. They collected our sales proceed. They beat my younger brother with sticks and killed him. His name is Fatai. These accused were those (sic) who matcheted my head and cut my arm.
…
We could not escape. Our motor-cycle fell on us. We were beaten by the accused and collected our money…
I was informed that my younger brother Fatai had given up.
The amputated arm was been (sic) with the Police. when the matchetting was becoming unbearable, my younger brother Fatai, disarmed the 1st accused (Abu Mohammed) who is black in completion (sic). My brother took the cutlass from the hand of Abu Mohammed (1st accused) and stuck (sic) the 1st accused with that same cutlass. It was the 2nd accused, person who removed money from my pocket…
I was in a state of confusion when my hand was cut. I did not know the accused before the day of the incident.”

On the part of the Pw4 (Saadu Quadri) also a victim, he testified as follows:
“The two accused suddenly appeared from the bush near the hill. They the accused held matchets and Fulani sticks. My brother who was driving motor-cycle was sacred (sic) and we fell from the motor-cycle. I quickly stood up and begged them. I was matcheted on the left finger near the thumb finger. I was also matcheted on my 2nd right near the thumb to the extent that the finger was almost cut off from the palm of my right hand. The fingers were stitched while the 2nd right finger near the thumb becoming useless and motionless. The vein and artery in that finger has been cut. I cannot put the finger into any use…
The victim that died was matcheted with cutlass on the head and all over his body and died.
The incident happened at 6.00pm.”

The Appellant in his testimony before the trial court, denied knowing the 1st accused (Abu Mohammed) and anything about the armed robbery he also denied knowing anything about the cutlass and the stick, Exhibits P1 and P2. He testified at pages 59-60 of the printed records that he was bereaved of his brother and father and was home at Dugi Village near Jebba and before then that he was staying with an uncle called Tambaya, at Abogi near Shaki. These pieces of evidence he gave in court and did not state these in Exhibit P5.

It is true as argued by the learned Attorney General that conspiracy is deducible as a matter of inference from the conduct of the parties to a criminal conspiracy. The offence can be inferred from the circumstances surrounding each case, by things said and/or done by the conspirators in reference to a common intention. If the Appellant had been at Dugi village near Jebba on the day and at the time of the incident he would have said so when he was arrested and made statement to the police, in exhibit P5 and given the particulars of where he said he was, who he was with and I called evidence to that effect. Alleging he was elsewhere is an afterthought, it was not timeously raised and I so hold.

The victims of the robbery PW3 and PW4 gave a clear account of the incident and the role played by the Appellant and his co-accused. Exhibit P3 the statement of the 1st accused when read together with Exhibit P4, along with the testimonies of PW3 and PW4 are enough to ground a conviction of criminal conspiracy. Exhibits P3 and P5 the statements made by Abu Mohammed and the Appellant respectively, in which each implicated the other as well as the evidence of PW7. Each clearly, described the role he played as well as the other. In my humble, but considered view, criminal conspiracy and armed robbery were established in that the chain of events are unbroken and not compatible with the innocence of the appellant or his colleague but, points irresistibly to the guilt of the appellant and his colleague, that they both conspired to commit armed robbery contrary to Section 97 of the Penal Code See, ADEPOJU vs. THE STATE 9 N.W.L.R. (PT.565) 195 AT 223 – 224. It is erroneous for the learned counsel to the Appellant to allege that, the learned trial judge convicted the Appellant solely on Exhibit P5 but, also considered by the trial court was other independent evidence which I corroborated the contents of Exhibit P5, which proved beyond reasonable doubt that the Appellant committed the offences charged and convicted.

Exhibit P5 was voluntarily made; there was no challenge of its voluntariness. It is positive and unequivocal and a definite admission of I guilt, it is enough to ground a finding of guilt regardless of the fact that the maker resiled there from or retracted it altogether at the trial, a U-turn by the accused does not make the confession inadmissible for the trial court’s use of same not to be acceptable. See, IDOWU VS. THE STATE (2000) 12 NWLR (PT.680) 48; (2000) 10 WRN 1. It is in evidence that the sum of N20,000.00 (Twenty Thousand Naira) was robbed from the victims and their younger brother, Fatai who lost his life to their assailants, by the appellant and his colleague. The evidence of the PW3, PW4 and PW7 with or without Exhibits P3 and P5 are sufficient to ground the conviction of the appellant. In my humble but, considered view, the learned trial judge was right to have utilized the retracted statement made by the appellant to the police.
If the position of the law were that a trial court would not utilize a retracted statement by an accused in course of trial then every accused person after confessing, the commission of an offence charged, in his extra Judicial statement to the police, voluntarily made, would easily go free on simply resiling from same, this would open up the flood gate of retraction of all statements made by an accused to the police, before trial.
It would be an escape route freely and easily available or taken by an accused person without any hindrance, to escape from justice. It would not be in the interest of the society to allow a man who has willingly and freely confessed to his crime to walk away from court a free man for the mere reason that he had a change of mind, the entire criminal trial would be a mockery of justice and dangerous to the society.

It was rightly argued by the learned Attorney General that there was no need for the prosecution to establish that the appellant and his colleague met before carrying out the acts of that day. Conspiracy is an offence that is often deduced or inferred from the acts of the parties, which are directed towards the realization of their common or mutual purpose or agreement.
Conspiracy is seldom proved by direct but, circumstantial evidence and inference from proved acts. There need not be direct communication between the conspirators but, the important thing is the common design. There must be acts common to both that they had a common design, see, THE STATE VS. OLASHEHU SALAWU (2011) LPELR – 82 52 (SC); AFOLABI v. THE STATE (2013) LPELR – 20700 (SC) and ODUNEYE VS. THE STATE (2001) 2 NWLR (PT.697) 311 AT 324. Where His Lordship, Achike, JSC (as he then was) defined the nature of conspiracy as follows:
“Conspiracy is not defined under the Criminal or Penal Code. But, perhaps, more importantly, a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence which is evidence not of the fact in issue but of other facts from which the fact in issue can be inferred.”

It is without doubt that the evidence of the PW3, PW4 and Exhibits pW3 and P5 established that the appellant and his colleague Abu Mohammed conspired and did go to Banni/Lele Road to rob these witnesses and their deceased brother Fatai. Each of the two accused persons implicated, the other in Exhibits P3 and P5 respectively, to show that they both agreed to carry out the illegal act of armed robbery.
The evidence adduced before the trial court by PW5, PW6 and PW7 further fortifies this position. It is immaterial that the Appellant as 2nd accused in his oral evidence before the trial court denied knowing the 1st accused Abu Mohammed. It is also clear that, there was an armed robbery incident in which one of the victims died. The parties are agreed on this.
I hold that the chain of events are unbroken and point to the guilt of the appellant and his colleague that they conspired to commit armed robbery contrary to Section 97 of the Penal Code. The Lower Court was right to have found the appellant guilty of conspiracy along with his colleague, Abu Mohammed.
It was contended by the learned counsel that the evidence of the PW3, PW4 and PW7 before the court was circumstantial. The law is as stated by Hewart Lord Justice of England in R. v. Taylor & ors (1928) CAR 20 at P.21, thus:
“It has been said that the evidence against the applicants is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances, which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
See, also FATOYINBO V. ATTORNEY GENERAL OF WESTERN NIGERIA (1966) W.N.L.R. 4; ADIE VS. THE STATE (1980) 1 – 2 S.C. 116; UKORAH VS. THE STATE (1977) 4 S.C. 167; AIGBADION VS. THE STATE (2000) 7 NWLR 686 AND NWEKE VS. THE STATE (2001) 15 W.R.N. 96 AT 104; (2001) 4 NWLR (PT.704) 588 AT 600.

From Exhibit 5, the Appellant acknowledged the fact that a robbery took place and that the attackers were armed from the injuries sustained by the victims, the death of one of them and the injuries sustained by the Appellant from the counter attack by the deceased Fatai when he disarmed the Appellant and his colleague. The victims PW3 and PW4 sustained serious injuries, cuts on their faces, arm and fingers. No other inference could be made than that these injuries were caused by the Appellant and his colleague in course of the armed robbery.

The Appellant raised the defence of alibi for the first time in the trial court. The learned counsel to the Appellant alleged that it was not investigated by the police. The appellant at the trial gave evidence that the heard that his brother and father had been killed by a vigilante group while at Abugagi rearing cattle, he ran home to Dugi Village near Jebba, he said he was arrested by the vigilante for no reason. The word “alibi” means “elsewhere” it is a matter peculiarly within the knowledge of the accused person. If he was at some particular place other than where the prosecution says he was at any material time, that is the “evidential value”, that is the burden of adducing or eliciting some evidence to show this, rests on him. See, GACHI VS. STATE (1965) NMLR 333 AT 335, YANOR VS. STATE (1965) 1 ALL N.L.R. 193; SAKA VS. STATE (1980) N.C.R. 309 AT 322 AND 328. In NWABUEZE VS. THE STATE (19880 4 NWLR (PT.86) 16 the Apex court emphasised that the defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of Criminals in that an accused person has a great duty to discharge rather than merely asserting that he was elsewhere at the time the offence was committed. He is duty bound to furnish the necessary information from which his where about at the crucial time could be checked. Where he fails to discharge that basic duty he cannot avail himself of the defence. See, OBAKPALOR VS. THE STATE (1991) 1 NWLR (PT.165) 113; (1991) 1 S.C.NJ. 91; 106 – 107; and OGOALA VS. THE STATE (1991) 3 SCNJ 61; 67 – 68 (1991) 2 NWLR (PT.175) 509. In the present case, the appellant did not do more than say that he was home at Dugi Village near Jebba while testifying in court, which did not give the police any opportunity to investigate same. The appellant did not discharge the evidential burden incumbent on him of giving correct and full particulars of the facts upon which he relied on his defence of alibi, for instance, those he was with or those that saw him at home in Dugi Village at the particular time of the incident. The situation is worse here, because the appellant only raised the defence of alibi while giving evidence, it is an afterthought. Where properly raised, it would have removed him from the possibility of being at the scene of crime at the time of the armed robbery. At the time it was raised the proceedings would not be halted to enable the police investigate the alibi now raised in court. In my humble view the defence of alibi fails and it is hereby discountenanced.

It was argued that the amount of money said to have been robbed from the victims was not tendered in evidence. To this, I would say that the Appellant was not arrested at the scene or immediately after the incident; there had been a time lag within which the money recovered would have been disposed of, either by being put away or spent. The appellant was arrested seven(7) months later. The last thing a suspect would want or do is to be caught with the proceeds of the armed robbery, knowing the gravity of the offence if established, not even a common thief would wish to be caught with proceeds of a theft. The culprits could have thrown the money away while escaping from the scene either deliberately or otherwise. I hold that the recovery of the money is immaterial. The important thing is that the victims were returning from selling their yams at Banni market and had their money robbed from them by armed men, identified to be the Appellant and another. The pw3 and pw4 gave evidence that the proceeds of their sale were collected from them. The Appellant in Exhibit P5 confirmed this.

The argument was also put up that there was no forensic analysis to ascertain that Exhibits P1 and P2, the cutlass and stick respectively, belonged to the Appellant.
I would add that it is common knowledge of lack of scientific and forensic analysis in our criminal trials in this country with the resultant effect that the trial court would be left to took for other means to arrive at its conclusion. Even in murder trials, medical evidence in proof of cause of death is not essential in a situation where (1) There is evidence of the death of the deceased; and (2) There is evidence that the death is as a result of the unlawful and intentional act of the accused person. Death in this case could be established by sufficient evidence other than forensic medical evidence showing beyond reasonable doubt that death resulted from the particular act of the accused person. See, R. VS. JOHNSON NWOKOCHA (1949) 12 WACA 453, ALARAPE VS. STATE; (2001) 5 NWLR (Pt.705) 79. Similarly, in this case, forensic evidence is not necessary to prove that Exhibits P1 and P2 were the weapons used to rob the PW3 , PW4 and their deceased brother, Fatai. The evidence led by the victims themselves and that of PW7 with Exhibits P3, P5 made it clear that these were used to attack and rob the victims by the Appellant and his colleague Abu Mohammed. No forensic analysis was required to prove same.

I cannot fault the analysis and decision of the learned trial judge in convicting the appellant of the offences charged when the court held as follows, at page, 70 of the printed records of Appeal thus:
The 2nd accused person in his statement said he collected N20,000.00 (Twenty Thousand) Naira from one of the victims. Furthermore, the victims (eye witnesses) fixed the 2 accused persons at the scene.
PW3 stated that his brother disarmed the 1st accused person while PW4 said he did not know the accused persons before until the day of the incident. The 2 surviving victims of the attack had a fairly long: encounter with the accused persons to be able to identify them. They were badly injured and deformed while their youngest brother (Fatai) lost his life in the spot (sic) as a result of severe wounds he sustained from the attack (May God have mercy, on his soul). The retaliatory attack from late Fatai as show (sic) on the head and arm of the 1st accused persons as deduced from the evidence of PWS 3, 4, 7, coupled with the failure of the 2nd accused to establish his defence of alibi is a confirmation that Abu Muhammed and Legi Muhammadu and no one else were those who actually committed the offence of Armed Robbery on 26/12/11. PW3 & 4 saw it all and suffered seriously from it. Their evidence and that of PW7 is more than enough to ground a conviction. See FATAI OLAYINKA VS. STATE NCC 2 PG 505. See MARTINS VS. STATE (1997) 1 NWLR (PT.48) 355 AT 365. The two accused persons are guilty of the offence of Conspiracy and Armed Robbery contrary to S.97 of the Penal Code and S.1(2) of the Robbery and Fire Arms (Special Provision) Act Cap. R11 Laws of Federation of Nigeria, 2004.”

The conclusion of the learned trial judge is unassailable, I am at one with same.
In the final analysis, I hold that the appeal is without merit, I dismiss same. I affirm the decision of the learned trial judge, of 13th November, 2013, in Suit No: KWS/49C/2012 delivered by H. A. Saleeman, J. of the High Court of Kwara State.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the well reasoned judgment of my learned brother CHIDI NWAOMA UWA, JCA just delivered.
I am in agreement with both the reasoning and conclusions therein. I also dismiss the appeal for having no merit. I affirm the decision of the High Court of Kwara State in case No: KWS/49C/2012 delivered on 13th November, 2013.

MUSA HASSAN ALKALI, J.C.A.: I had the privilege, of reading in draft judgment of my learned brother, Chidi Nwaoma Uwa JCA. with which I entirely agree. For the reasons so eloquently and compressively set out, I too agree with the final conclusion in the aforesaid judgment.

Appearances

Ms Toyin BashorunFor Appellant

AND

Kamaldeen Ajibade, Attorney General, Kwara State with O. S. Balogun, Senior State Counsel, Kwara State Ministry of JusticeFor Respondent