MIJI v. STATE
(2022)LCN/17103(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/YL/100C/21
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
DANLADI MIJI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE MEANING OF PROOF BEYOND REASONABLE DOUBT
The term proof beyond reasonable doubt does not mean and is never interpreted to mean proof beyond all shadow of doubt. See EZEANI VS. FRN (2019) LPELR – 46800 (SC) P. 23, PARAS. A – C, his Lordship Okoro, JSC explained it thus:
“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170, AKINLOLU VS. THE STATE (2015) LPELR – 25986 (SC), OSENI VS. THE STATE (2012) LPELR – 7833 (SC), MILLER VS. MINISTER OF PENSIONS (1974) 2 ER P. 372.”
See also STATE VS. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAS. G – E and AMEH VS. STATE (2018) LPELR – 44463 (SC) PP. 22 – 23, PARAS. E – A. On the meaning of “proof beyond reasonable doubt” the Apex Court also held in NWATURUOCHA VS. THE STATE (2011) LPELR – 8119 (SC) P. 25, PARAS. C – D, (2011) 3 SCNJ P. 148; (2011) 6 NWLR (PT. 1242) 170), His Lordship Fabiyi, JSC explained it thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
See also OSUAGWU VS. STATE (2013) LPELR – 19823 (SC) P. 25, PARAS. D – E, ADEKOYA VS. STATE (2017) LPELR – 41564 (SC) PP. 19 – 21, PARA. C, AYINDE VS. STATE (2019) LPELR – 47835 (SC) P. 16, PARAS. C – F and OFORDIKE VS. STATE (2019) LPELR – 46411 (SC) PP. 8 – 9, PARAS. C – B. To discharge the burden on the prosecution, it could be done by various ways, through:
1. Eye witness account of the crime,
2. Confessional statement and
3. Circumstantial evidence which irresistibly linked the accused person to the alleged crime. PER UWA, J.C.A.
THE POSITION OF LAW ON THE OFFENCE OF ARMED ROBBERY
To succeed in a charge of Armed Robbery, it has been firmly established by a plethora of authorities that in order to secure conviction every single element or ingredients of the offence must be proved by the prosecution beyond reasonable doubt. Armed Robbery simply means robbery plus violence threatened or used. Before there can be robbery something must be stolen and it is the duty of the prosecution to prove the offence beyond reasonable doubt. The prosecution must prove that the accused person stole something capable of being stolen and at the time of stealing, the accused threatened to use violence or used violence immediately before or after the time of stealing. The violence would be either on a person or on property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
To establish armed robbery as it was made out by the parties, the prosecution must prove beyond reasonable doubt that there was a robbery or series of robberies and that the robbers were armed and the accused was the armed robber or one of the armed robbers. See F.R.N VS. YARO (2012) SCN 223 AT 236 – 237, OKANLAWON VS. STATE (2015) 3 SCN 359 and ISIAKA VS. STATE (2013) NCQR 1158.
Going by the testimony PW1, stated thus:-
“…On the 26/12/2015 at about 8:30pm I and my junior brother by name Alhaji Sani were coming from the shop where we sell handsets, recharge cards/provisions. We met four persons two on each side and they stopped us. Three of the persons were armed with guns while the 4th person was armed with a knife. The accused person herein was one of the persons referred to here. They collected recharge cards totaling One Million Naira, raw cash totaling about seventy Thousand Naira realized from the sales of handsets/recharged cards and ‘provisions. Also taken away from me is a laptop valued at N70,000.00 the accused person in spite of taking away the afforested items still insisted we should take them to my elder brother’s house the accused person fired a shot in the house, and all of us in the house lied down. My elder brother came out after hearing the shot and gunshot and accosted the accused person and we all stood up and arrested the three persons were taken to the police station at Tinkno, the two accused were lynched by the villagers at Police Station but the accused survived. From there, he was taken to Lamurde Divisional Police Headquarters we couldn’t recover our stole items but only two guns and one knife was found on the accused.” See page 92 of the printed record of appeal. PER UWA, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT
It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR – 43603 (SC) P. 14, PARAGRAPH A-E. His Lordship Sanusi, JSC clearly stated the position of the law thus:
“A Confessional Statement simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See ALABI V. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI V. STATE (2015) 6 – 7 SC (PT. 1) 83, OSETOLA AND ANOR VS. STATE (2012) 6 SCNJ 321, NWACHUKWU VS. THE STATE (2002) SCNJ 230, DOGO V. THE STATE (2013)2-3 SC (PT. III) 75 at 92 – 94.” PER UWA, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
In IMEPURUNGU VS. THE STATE (2019) LPELR -47047 (CA), I restated the position of the law briefly as follows:
“In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra-judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement, the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say.” See also AZABADA VS. STATE (2014) LPELR – 23017 (SC), STATE VS. MUHAMMED MASIGA (TSOLO) 2017 LPELR – 43474 (SC).” The testimony of the PW1 and PW2 was sufficient corroboration of the Exhibits “A1 and A2”. In UDO VS. THE STATE (2018) LPELR – 43707 (SC) at P. 22, PARAS. A – B, his Lordship Rhodes – Vivour, JSC held that:
“Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.”
The law is that the evidence of an eye witness is one of the best evidence to sustain a conviction of an accused person, an on the spot account of what an eye witness (PW1 & PW2) saw at the scene of the alleged offence, it is sufficient to sustain a conviction. See SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73, AKINMOJU VS STATE (2000) 6 NWLR (PT. 662) 608 and AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171. The PW1 and PW2 gave a clear and detailed account of what they saw at the scene. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In the judgment of the Adamawa State High Court, (hereafter referred to as the lower Court) delivered on 25/2/21 by Abdul-Azeez Waziri, J., the Appellant was convicted and sentenced to death for conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, (LFN) 2004. The Appellant was charged and tried alone while the two (2) others were at large. At the trial, the prosecution called three (3) witnesses, PW1 – PW3 in proof of its case and tendered two (2), Exhibits “A1” & “A2” respectively. In his defence, the Appellant testified as the DW1 and called four (4) witnesses who testified as DW2 – DW5. At the close of the trial, the trial Court delivered judgment, convicted and sentenced the Appellant to death by hanging. Dissatisfied with the decision the Appellant appealed to this Court.
The background facts are that the Appellant on or about the 26th day of December, 2015 at about 21:30 hours at Tingno, in Lamurde Local Government Area of Adamawa State, with four (4) others agreed to do an illegal act, to wit: rob with offensive weapons such as guns, and knives and did rob Alhaji Samaila Yahya and Alhaji Sani Yahya of the sum of about N1,000,000.00 cash, recharged cards valued at about N1,000,000.00 and a laptop valued at N70,000 while so armed in pursuance of the said agreement.
Upon arraignment, the Appellant had the two count charge read, interpreted and explained to him in Hausa language. The Appellant understood and pleaded not guilty. The Prosecution called three (3) witnesses i.e Alh. Samiala Yahya, Daniya Yahya and Sgt. Usman Sanda who testified as PW1, PW2, and PW3 respectively and tendered Exhibits “A1” and “A2’ the Extra- judicial cautionary statement of the Appellant was admitted in evidence as Exhibits after a trial within trial was conducted. The prosecution thereafter closed its case. The Appellant testified as DW1 and called four (4) other persons who also testified as DW2 – DW5 respectively and thereafter closed his case. In the judgment of the trial Court, the Appellant was convicted and sentenced to death by hanging.
The Appellant formulated a sole issue for the determination of the appeal.
“Whether the trial Court was not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy, and convicted and sentenced the Appellant to death? (This issue has been distilled from Grounds 1 – 8 of the Notice of Appeal)
The Respondent on its part also formulated a sole issue for the determination of the appeal as follows: –
“Was the learned trial judge not right to have convicted and sentenced the appellant based on the evidence adduced before him, having the prosecution (sic) proved all the essential ingredients of the offences charged?
(This issue is distilled from grounds 1 – 8 of the Appellant’s grounds of appeal)
In arguing the appeal, the learned counsel to the Appellant A. G. Anafi, Esq., adopted and relied on his brief of argument filed on 26/10/2021 and deemed properly filed and served on 2/2/2022 as his argument in this appeal; in urging us to allow the appeal, set aside the conviction and sentence by the trial Court and discharge the Appellant. In arguing his sole issue, the learned counsel submitted that the trial Court was wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offences of armed robbery and conspiracy to commit armed and convicted and sentenced the Appellant to death. See page 163 of the printed records of appeal. It was submitted also that the evidence led by the Respondent and relied upon by the trial Court did not establish beyond reasonable doubt that the Appellant committed the offences of armed robbery and conspiracy.
It was made out that an accused person standing trial is presumed innocent until proved guilty and the prosecution has the ultimate burden of proving the guilt of an accused person in a criminal trial. The standard required to discharge this burden is proof beyond reasonable doubt. See SECTION 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED); SECTION 135 OF THE EVIDENCE ACT, 2011; STATE V. ONYEUKWU (2004) ALL FWLR (PT. 221) 1388, 1425; and IGABELE V. STATE (2004) 15 NWLR (PT. 896) 314, 344.
It was further submitted that there are three (3) methods of proving the guilt of an accused person. These are by a confessional statement of an accused person voluntarily made; by circumstantial evidence, and by direct evidence of eyewitnesses. See FAMUYIWA V. THE STATE (2018) 5 NWLR (PT. 1613) 515 AT 534 C ALSO REPORTED AT (2017) LPELR – 43836 (SC), IGABELE V. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR V. THE STATE (2014) LPELR – 23064 (SC), EMEKA V. THE STATE (2001) 32 WRN 37, 59; and OKUDO V. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236D.
The learned counsel to the Appellant submitted that the Respondent failed to lead any cogent and compelling evidence in support of the Information filed before the Trial Court. We were referred to the essential elements of the offence of armed robbery. See ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO V. STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO V. STATE (2014) 12 NWLR (PT. 1424) 613, ADEKOYA V. STATE (SUPRA) and IKARIA V. STATE (2014) 1 NWLR (PT. 1389) 638. Further, that PW1 – PW3 failed to link the robbery incident to the Appellant.
It was contended that the three (3) essential elements or ingredients for the offence of conspiracy to commit armed robbery must co-exist and where one of them is absent the charge against the accused person cannot be said to have been proved. See USUFU V. THE STATE (2007) 3 NWLR (PT. 1020) 94 AT 113 – 114 H -1.
It was made out that, in the absence of any direct evidence, where the same set of facts are relied upon, if the essential elements of armed robbery are not established, a charge of conspiracy to commit armed robbery will fail automatically. See SALAWU V. THE STATE (2010) LPELR – 9106 (CA) and ARIBIGBOLA V. THE STATE (2010) LPELR – 9164 (CA). It was submitted also that a person cannot be convicted for conspiracy because one person cannot conspire with himself to commit a crime. The trial Court wrongly relied on Exhibits A1-A2 in convicting the Appellant for conspiracy and armed robbery. See pages 153 – 154 of the printed records of Appeal.
It was contended that the trial Court rightly found in the judgment that the Appellant resiled from Exhibits A1-A2 and that the law enjoins the trial Court to seek legally admissible independent corroboration before relying on the retracted confessions but, was wrong when it held otherwise. See, page 156 of the printed records of appeal.
It was contended further that it is an elementary principle of law that once an accused person denies making a confessional statement, it constitutes a retraction of such confession. Once a confessional statement is retracted, it remains admissible, nonetheless, such admissibility goes to the weight or probative value of evidence to be attached to such a confession. See ONAFOWOKAN V. STATE (1986) 2 NWLR (PT. 23) 496, BASIL AKPA V. THE STATE (2008) LPELR – 368 (SC), OCHE V. THE STATE (2006) LPELR – 11634 (CA), QUEEN V. ITULE (1961) 1 ALL NLR 462, ASANYA V. STATE (1991) 3 NWLR (PT. 180) 422 and ONAFOWOKAN V. STATE (SUPRA).
It was submitted that a Court of law can conveniently convict an accused person based on a confessional statement that is positive, direct and unequivocal. However, where an accused person retracts his confessional statement, such statement requires an independent corroboration which is distinct from and does not derive from the confessional statement itself. See OKOH V. THE STATE (2014) LPELR-22589 (SC), 27E – 28A, IFEDAYO V. STATE (2018) LPELR – 44374 (SC) 32 – 33, AZABADA V. STATE (2014) LPELR – 23017 (SC) 14G – 15D and STATE V. MUHAMMED MASIGA (TSOLO) (2017) LPELR – 43474 (SC) 14D – 15C. It was submitted also that the trial Court should have sought legally admissible corroboration independent of Exhibits A1-A2 before convicting the Appellant and failure of the trial Court to seek an independent corroboration of Exhibits A1-A2 renders the same with little or no probative value.
It was submitted further that Exhibits A1-A2, an alleged confession of the Appellant, was tendered in evidence by PW3 instead of Sgt. Samaila Audu who recorded the statement, at page 103 of the printed records of appeal. See OLALEKAN V. STATE (2001) LPELR – 2561 (SC).
It was made out that, the testimony of PW2 should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2 because it did not establish or link the alleged robbery to the Appellant and same is hearsay which is inadmissible. See KASA V. STATE (1994) LPELR – 1671 (SC) and IJIOFFOR V. THE STATE (2001) 9 NWLR (PT. 718) 371. Further that the testimony of PW3 is irrelevant and lacks corroborative value because he did not investigate the case against the Appellant, but that one Sergeant Samaila Audu did and that it should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2. See page 103 of the printed records of appeal. It was submitted that the PW1 testified that the alleged robbery occurred at about 8:30 p.m and that he never knew the Appellant or the alleged robbers before the alleged robbery and that he could not have clearly identified the Appellant which created a doubt in the Respondent’s case.
It was made out that an identification parade is not necessary in all cases but necessary where the accused was not arrested at the scene, where he denies taking part in the crime and the victim did not know the accused before the commission of the crime. See JAMES UFOR V. STATE (2016) LPELR-40126(CA) and OKIEMUTE V. STATE (2016) LPELR – 40639 (SC). It was submitted that, considering the time of the alleged robbery incident and the other circumstances surrounding the said incident, the Appellant should have been properly identified. See also OKOH V. THE STATE (2008) LPELR – 8352 (CA), IN MUSTAPHA V. STATE (2008) WRN (VOL. 2) 76 AT 83, MARTINS V. STATE (1997) 1 NWLR (PT. 481) 355 AT 370 PARAGRAPHS B-G, GHOHOR V. STATE (2013) ALL FWLR (PT. 709) 1061 AND NWANKWO V. THE STATE (2017) LPELR – 42756 (CA). It was made out that, having impugned the testimony of PW1 – PW3, as well as Exhibits A1 & A2, there is no other legally admissible evidence on record capable of supporting Exhibits A1-A2. See OMEGA BANK NIGERIA PLC V. O.B.C. LTD. (2005) 1 SC 150. It was submitted that this Court has power to expunge the inadmissible evidence from the record. See IFARAMOYE V. THE STATE (2017) LPELR – 42031 (SC) and ALADE v. OLUBADE (1976) 2 FNR 10 at 13. It was contended that the independent corroboration required must be sourced from legally admissible evidence available before the Court and that the Court cannot consider pieces of evidence which are not legally admissible to make findings of fact. This makes Exhibits A1-A2 stand as a lone evidence against the Appellant, Exhibits A1-A2 cannot corroborate each other. See IMEPURUNGU V. THE STATE (2019) LPELR – 47047 (CA), MOHAMMED V. THE STATE (2019) LPELR – 47045 (CA), R V. SYKES (1913) 8 CAR APPEAL REPORT 233 and AKPAN V. STATE (1992) 6 NWLR (PT. 248) 439. See also pages 156 – 157 of the printed records of appeal.
It was contended that PW3 did not testify that Exhibits A1-A2 was made in the presence of the Appellant’s lawyer or his relatives which makes Exhibits A1-A2 doubtful, ingenuine and unreliable. See OWHORUKE V. COP (2015) LPELR – 24820 (SC).
It was submitted that there is a material contradiction in the case presented by the Respondent which should have been resolved in the Appellant’s favour. The law is settled that the appellate Court and the parties are bound by the record of appeal as compiled, transmitted and certified by the appellate Court. See MAGAJI V. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) AND AGBO V. FRN (2013) LPELR – 22870 (CA).
It was made out that there are material contradictions in the testimony of the witnesses of the Respondent which create some doubt, that the accused person, is entitled to benefit there from. See pages 92, 93 and 103 of the printed records of appeal. See also POPOOLA V. STATE (2013) LPELR – 21443 (CA) 12C – G, JIMMY V. THE STATE (2013) LPELR – 20333 (SC) and AGBO V. THE STATE (2006) LPELR – 242 (SC).
It was made out that the trial Court was wrong when it held that Appellant has graphically stated in Exhibits “A1- A2” how he was invited by one Ruben from the uncontroverted evidence of PW1 and PW2 and other co-accused persons killed and at large acted in concert and that the appellant was not standing trial for murder and alone which in error and should be set aside. See pages 159 – 160 of the printed records of appeal.
It was submitted that no legally admissible evidence was led before the Trial Court that established beyond reasonable doubt the guilt of the Appellant in relation to the offence of armed robbery. It was also submitted that in the absence of any direct evidence, where the same set of facts are relied upon and where the essential elements of armed robbery are not established, a charge conspiracy to commit that robbery will fail automatically.
The Appellant’s counsel submitted further that the trial Court erred in law when it convicted the Appellant for conspiracy on count 1 which is an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. There must be two or more persons. See STATE V. YUSUF (2007) ALL FWLR (PT. 377) 1001 AT 1011 B – D, AGUGUA V. STATE (2017) 10 NWLR (PT. 1573) 254 AT 277G, SULE V. THE STATE (2009) 17 NWLR (PT. 1169) 33 AT 63 E-F, OGUGU V. STATE (1990) 2 NWLR (PT. 134) 539 AT 553 C–D, YAKUBU V. STATE (2014) LPELR – 22401 (SC) and YUSUF V. STATE (2012) LPELR – 7878 (CA).
It was submitted that the Respondent did not lead any evidence of common criminal intention formed between the Appellant and any other person to rob PW1. See OKEKE V. STATE (1999) 2 NWLR (PT. 590) 247. It was submitted further that none of PW1, PW2, PW3 and Exhibits A1-A2 established that the Appellant ever met and formed a common criminal intention with anyone for the prosecution of any unlawful purpose or to rob PW1. See ALARAPE V. THE STATE (2001) LPELR – 412 (SC).
It was contended that, it is conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See BAKARE V. THE STATE (1987) 1 NWLR (PT. 52) 579; AND WUAM V. AKO (1999) 5 NWLR (PT. 601) 162. It was submitted further that where there is a doubt based on reason arising from evidence of the Respondent, doubt which a reasonable person might entertain, and which is distinct from fanciful or imaginary doubt should have resolved in favour of the Appellant. See UCHE V. STATE (2015) LPELR – 24693 (SC) AT 22-23 G – C, JUA V. STATE (2010) 4 NWLR (PT. 1184) 217 AT 243 AND JIBRIL V. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 AT 383.
It was submitted that the Respondent woefully failed to discharge the burden placed on it to establish the guilt of the Appellant on the allegations of offences of conspiracy and armed robbery. See ADEYEYE V. STATE (1968) NMLR 48 and OLUWATOYIN ABOKOKUYANRO V. THE STATE (2016) LPELR-40107 (SC), IDEMUDIA V. STATE (1999) 7 NWLR (PT. 610) 202 AT 215, ESANGBEDO V. STATE (1989) 4 NWLR (PT. 113) 57, SECTION 135(1) OF THE EVIDENCE ACT 2011, NWOSU V. STATE (1998) 8 NWLR (PT. 562) 433 AT 444 and AIGBADION V. STATE (2000) 7 NWLR (P.T 666) AT 704.
It was made out that the failure of the Respondent to link the Appellant to the robbery of PW1 with any legally admissible evidence, which is a vital element of the offence of robbery with which the Appellant was convicted for, created doubts in the case of the Respondent at the trial Court. The trial Court was in error to have resolved the doubts in favour of the Respondent instead of the Appellant. See SALE V. THE STATE (2016) 3 NWLR (PT. 1499) 392 AT 423 D – E AND 424 B – C.
Lastly, it was made out that it is settled law that any wrongful admission of, and reliance on, evidence will not constitute a ground for reversing a decision unless the party complaining can show as well that without such evidence, the decision complained of would have been otherwise. See BASSEY V. EKANEM (2001) 1 NWLR (PT. 694) 360 AT 378 F-G. Had the trial Court not admitted and placed much weight on the testimonies of PW1 and PW2 as well as Exhibits A1-A2, it would not have held that the Appellant was guilty of the offences with which he was charged. That those inadmissible pieces of evidence seem to be the sole evidence that influenced the judgment of the Trial Court. See pages 152 – 163 of the printed records of appeal.
In response, the learned counsel to the Respondent Z. Y. Usman, Esq., Senior State Counsel, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 19/11/2021, deemed properly filed and served on 2/2/2022 in urging us to dismiss and affirm the judgment of the trial Court. The Learned Senior State Counsel argued his appeal seriatim and submitted that the above issue formulated for determination by this Honourable Court, ought to be answered in the affirmative. It was submitted also that it is a constitutional requirement that, the prosecution must displace the presumption of innocence against the defendant as rightly pointed out by learned appellant counsel, this fundamental principle is displace once the prosecution prove its case beyond reasonable doubt, and not necessarily beyond all shadow of any doubt. See FEKOLOMOH V STATE (2021) EJSC (VOL.165) PG. 82 PARAS B-D AT 107; BAKARE V STATE (1987) 3 SC 1, IORTIM V STATE (1997) 2 NWLR (PT. 490) 711, OKERE V STATE (2001) 2 NWLR (PT.697) 397 and EMMANUEL IKE VS. THE STATE (2011) 200 LRCN 143 AT 149 R. 9. See pages 152 – 153 of the printed record of appeal. It was submitted that from the totality of evidence available to the trial Court, that led to this appeal all the above three elements as far-reaching alluded above were intact.
It was made out that despite the prosecution witnesses whom the trial Court believed their testimony made the requirement of law to secure the conviction of the Appellant. See FEKOLOMOH V STATE (Supra) PARAS E-G AT 107; PER SAULAWA, ILORI V STATE (1980) 8-11 SC 18, EMEKA V STATE (2001) 14 NWLR (PT 734) 668, GODWIN IGABELE II VS THE STATE (2007) 2 NCC 125 R. 6, OGUNO V. STATE (2013)15 NWLR (PT. 13761)1, NIGERIAN NAVY V LAMBERT (2007)18 NWLR (PT.1066) 300 and EMEKA V. THE STATE (2001)14 NWLR (PT. 734)666.
It was submitted further that the contains of Exhibits A1 & A2 are cogent and compelling which were tendered and admitted in evidence after a mini trial was ordered and successfully conducted, same was fully corroborated by the evidence of PW1 & PW2 wherein it clearly linked the contributory factor of the Appellant. See pages 154-157 of the printed record of appeal.
It was contended that assuming but not conceding that Exhibits A1 and A2 needed an independent corroboration, the said confessional statement was not only corroborated but was also tested through trial within trial to see if there was anything outside the confessional statement to ascertain if truly same was made by the Appellant.
It was made out that even if the Appellant was convicted based on his extra-judicial cautionary statement alone after trial within trial the appellant was rightly convicted on the strength of his cautionary statement Exhibit A1 & A2 which at all material time its stating or suggesting that he committed the offences with which he was charged while armed with offensive weapons. See EDHIGERE VS THE STATE (1996) NWLR (PT 464) 1 AT P.10 PARAS B- C and BASIL AKPA VS THE STATE (2008) 163 LRCN 186 AT 192 R.9 at 203 JJ 208 A.
It was submitted also that the confessional statement doesn’t need any independent evidence to corroborate the confessional statement of the Appellant to squire his conviction as corroboration in this case may only be desirable and not mandatory. See AGU vs STATE (2017)10 N.W.L.R. PT 1573 PG 180 PARAS C- F Per M.D, EGBOGHONOME vs STATE (1993)7 N.W.L.R. (PT 309) 383, KIM vs STATE (1992) 4 N.W.L.R. (PT 233) 17, NNAMDI OSUAGWU vs STATE (2013) LPELR-19823 (SC) and KINGSLEY JOE ISONG vs STATE (2016) LPELR – 40609 (SC) and YUSUF V. STATE & ADESAKIN V. STATE (2020) EJSC (VOL.135) PG. 154 PARAS D- E AT 169.
It was submitted that the mere fact that the Appellant in his testimony as DW1 resile from making the statement in an open Court, has nothing to do with involuntariness or whatsoever and therefore the admissibility of the statement and the resolution of the Court in convicting him on the strength of his confessional statement. See TANKO VS THE STATE (2008) 16 NWLR (PT.1114) P.597 AT 604 PARAS B-E AT 627 and BASIL AKPA VS THE STATE (Supra) R.18. See also pages 83 – 85 of the printed record of appeal. It was made out that, having become evidence, the Appellant can no longer say it is a worthless document during his appeal and to fault the trial Court as to why he was convicted on the strength of his voluntary confessional statement. See SHURUMO VS THE STATE (2001) 196 LRCN 199 R. 1. Also commenting on the use of confessional statement to prove the guilt of an accused person, the Supreme Court also stated it in the case STEPHEN OMOGA VS THE STATE (1997) 7 SCNJ 518 AT 529.
It was made out that the Respondent at the lower Court was able to lead credible and convincing evidence in establishing the ingredient of the offence of armed robbery against the appellant. See STATE vs EKANEM (2017) 4 NWLR (PT. 1554) PG. 85 AT 105 PARAS G-H.
It was contended that it was obvious that the Respondent has led evidence at the lower Court to show that there was a robbery(s), the robbery was armed robbery and the Appellant was one of those who took part in the robbery. It was contended further that based on the evidence of PW1, PW2 and Exhibits A1 and A2 above which is so glaring and left no doubts. See page 150 of the printed records of appeal. See also page 93 of the printed record of appeal and we were also referred to the cases of STATE V. IBRAHIM (2021) EJSC (VOL. 164) PG 132 PARAS H-C AT 154, OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360, ABIODUN V. STATE (2013) 9 NWLR (PT. 14358) 138, SUBERU VS STATE (2010) 8 NWLR (PT. 1197) AT 586 and ATTAH VS STATE (2010) 10 NWLR (PT. 1201) AT 190.
It was made out that the Court should discountenance with the submission of the Appellant at paras 4.1 to 4.5, on the grounds that the Respondent did not lead cogent and compelling evidence in proving the essential elements of the offence of armed robbery and rather hold that all the essential ingredients of the offence of armed robbery are intact and same has been discharged. Lastly, it was submitted that on issue of robbery, it is settled law that where a defendant is properly identified at the scene of crime as in the instance case. The Court can convict on same.
It was made out by the Respondent on what its need to prove or secure conviction on the offence of conspiracy to commit armed robbery against the Appellant are the ingredients of the offence. See OKOH V THE STATE (2014) 8 NWLR (PT 1410) 502 AT 523 3.24.
It was submitted that the ingredients were established beyond reasonable doubt at the trial Court, and the Court aptly relied on and convicted the Appellant. It was also made out that the Appellant in Exhibits ‘‘A1 & A2’’ categorically stated the way and manner in which he participated in the said armed robbery. See pages 83- 85 of the printed records of appeal.
It was submitted that Exhibits “A1 and A2” was admitted in evidence after trial within trial was conducted, the testimonies of PW1 and PW2, which in-turn the Court is allowed by law to convict him on same. See pages 157 – 162 of the printed record of appeal. It was contended the Respondent had proved the offence of conspiracy to commit armed robbery against the Appellant. See pages 157 to 162 of the printed record of appeal. It was submitted that there was more than enough evidence which suggested that the offence of conspiracy was proved against the Appellant and the appellant was not the only one that participated in the commission of the crime. See pages 161- 162 of the printed record of appeal. It was submitted that there is material contradiction in the evidence of PW1, PW2 and PW3, it is not true and that evidence of PW1 and PW2 is firm and uncontradicted both in their evidence in chief and under cross-examination. See page 92 of the printed record of appeal. It was submitted that the Appellant’s counsel in his submission at paras 4.33, that the trial Court was wrong to have mention the ingredients of murder in the consideration of an offence of conspiracy. It was submitted that, this submission was misconceived as such did not born from the printed record of appeal before the Court. It was made out that the learned Appellant’s counsel makes heavy weather on the trial Court admitting Exhibits “A1 and A2” through PW3 who was not the recorder of the statement that the argument is misleading. See Sections 39, 40 – 50 of the Evidence Act 2011, a confessional statement can be tendered through a non-maker and it is admissible in evidence and can validly be acted on. See MICHAEL OLOYE V. THE STATE (2018) LPELR-44775 (SC) and JOHN V. STATE (2011) 18 NWLR (PT. 1278) 353 SC. See, also pages 98-102 and 103- 104 of the printed record of appeal.
I have examined the sole issues as formulated by the respective parties for the determination of the appeal. They are similar but, differently worded. I would reformulate the issue for the determination of the appeal thus:
Whether from the circumstances of this case and the evidence adduced at the trial Court, the Court was right to have convicted and sentenced the appellant for the offences of conspiracy and armed robbery for which he stood trial?
In criminal trials, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt.
The learned counsel to the parties agreed that where there is an allegation of commission of a crime, the prosecution is expected to prove the commission of the offence beyond reasonable doubt. The term proof beyond reasonable doubt does not mean and is never interpreted to mean proof beyond all shadow of doubt. See EZEANI VS. FRN (2019) LPELR – 46800 (SC) P. 23, PARAS. A – C, his Lordship Okoro, JSC explained it thus:
“The law is trite that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170, AKINLOLU VS. THE STATE (2015) LPELR – 25986 (SC), OSENI VS. THE STATE (2012) LPELR – 7833 (SC), MILLER VS. MINISTER OF PENSIONS (1974) 2 ER P. 372.”
See also STATE VS. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAS. G – E and AMEH VS. STATE (2018) LPELR – 44463 (SC) PP. 22 – 23, PARAS. E – A. On the meaning of “proof beyond reasonable doubt” the Apex Court also held in NWATURUOCHA VS. THE STATE (2011) LPELR – 8119 (SC) P. 25, PARAS. C – D, (2011) 3 SCNJ P. 148; (2011) 6 NWLR (PT. 1242) 170), His Lordship Fabiyi, JSC explained it thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
See also OSUAGWU VS. STATE (2013) LPELR – 19823 (SC) P. 25, PARAS. D – E, ADEKOYA VS. STATE (2017) LPELR – 41564 (SC) PP. 19 – 21, PARA. C, AYINDE VS. STATE (2019) LPELR – 47835 (SC) P. 16, PARAS. C – F and OFORDIKE VS. STATE (2019) LPELR – 46411 (SC) PP. 8 – 9, PARAS. C – B. To discharge the burden on the prosecution, it could be done by various ways, through:
1. Eye witness account of the crime,
2. Confessional statement and
3. Circumstantial evidence which irresistibly linked the accused person to the alleged crime.
The Appellant was charged and convicted for the offence of Criminal Conspiracy to commit Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R II Laws of the Federation 2004 (hereafter referred to as the Act), Robbery while armed with offensive weapons contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation 2004.
To succeed in a charge of Armed Robbery, it has been firmly established by a plethora of authorities that in order to secure conviction every single element or ingredients of the offence must be proved by the prosecution beyond reasonable doubt. Armed Robbery simply means robbery plus violence threatened or used. Before there can be robbery something must be stolen and it is the duty of the prosecution to prove the offence beyond reasonable doubt. The prosecution must prove that the accused person stole something capable of being stolen and at the time of stealing, the accused threatened to use violence or used violence immediately before or after the time of stealing. The violence would be either on a person or on property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.
To establish armed robbery as it was made out by the parties, the prosecution must prove beyond reasonable doubt that there was a robbery or series of robberies and that the robbers were armed and the accused was the armed robber or one of the armed robbers. See F.R.N VS. YARO (2012) SCN 223 AT 236 – 237, OKANLAWON VS. STATE (2015) 3 SCN 359 and ISIAKA VS. STATE (2013) NCQR 1158.
Going by the testimony PW1, stated thus:-
“…On the 26/12/2015 at about 8:30pm I and my junior brother by name Alhaji Sani were coming from the shop where we sell handsets, recharge cards/provisions. We met four persons two on each side and they stopped us. Three of the persons were armed with guns while the 4th person was armed with a knife. The accused person herein was one of the persons referred to here. They collected recharge cards totaling One Million Naira, raw cash totaling about seventy Thousand Naira realized from the sales of handsets/recharged cards and ‘provisions. Also taken away from me is a laptop valued at N70,000.00 the accused person in spite of taking away the afforested items still insisted we should take them to my elder brother’s house the accused person fired a shot in the house, and all of us in the house lied down. My elder brother came out after hearing the shot and gunshot and accosted the accused person and we all stood up and arrested the three persons were taken to the police station at Tinkno, the two accused were lynched by the villagers at Police Station but the accused survived. From there, he was taken to Lamurde Divisional Police Headquarters we couldn’t recover our stole items but only two guns and one knife was found on the accused.” See page 92 of the printed record of appeal.
PW2 on his part stated thus:-
“…on the 26/12/2015, I left my junior brothers in the shop and went back to the house. I then opened my Radio and was listing to B.B.C Hausa service at 8:40pm then I heard a gunshot inside the house so I came out and I met the accused person standing with a gun so I grabbed him and we fell down together and the rifle fell down in the process and they are about 3 of them and it was dark then.
We then arrested the three of them and took them to the police out at Tinkno. Two out of the suspect were lynched at the police station and it is only the Accused person that survived….” (See page 93 of the record of appeal)
The narration thus far by the PW1 and PW2 shows that there was a robbery which is superficially damning against the Appellant. There is no contention as to whether there was a robbery and a careful examination of the case at the trial Court reveals the fact that armed robbery occurred, and the Appellant was among the Robbers armed that collected the properties of the victims which indeed was established beyond reasonable doubt, mainly by the oral testimony of the said PW1 and PW2.
I shall also reproduce the testimony of the Appellant in Exhibits “A1 and A2” which read thus:-
“… I can remember last year in the month of December that is 2014 one Danjuma of Tinno Village via Cham district he used to sale herbal medicine at Cham, one day I went to buy some medicine from him we became friends and he collected my phone number which I also collected his own and we are communicating from there he called me one day and ask me to meet with him at one Village Gundili via Tinno district Lamured L.G.A Adamawa State which I agree. On reaching there the said Danjuma called me a side and inform me that he is a Armed Robber and he want me to join him and his team. I accepted because I am afraid of him and I don’t want him to know, after some month when I was at home one Ruben M. of the same address called on the phone and asked me to come to Tinno district because everyone is there except myself on reaching to Tinno, I meet the following – (1) Ruben M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos .M. of various address e all conspire an herd at the river side behind one Primary School, around 20:00hrs Danjima been the leader of the team went and brought three rifles, he gave one to Dan-fulani, one to Emos .M. and he also gave the remaining on to Ruben .M. Ali was holding knife and they assign me to be the one that will hold money and properties when we succeeded from there Ruben .M. 21 told us that we are going to Robben some boys that has shop and there selling hand set at the markets immediately when the boys reached to were the rest of my team are hiding we got them arrested and took them to here house we ask the boys to lay down flat and any one of them try to move we will shoot him Dan-fulani .M. and Ali .M. when directly in to the main building which myself and Emos .M. who was holding rifle were Guarding two boy that were ask to lay down, after some few minute someone grab me from the back and start beating me, Emos .M. and Dan-fulani were also arrested at the scene and we wear beating by the mob which led to the died of Emos .M. instantly myself and Dan- Fulani .M. we were taken to the police station and the said Danfulani sustained high degrees of injuries which lead to his dead also at the police station while Ali .M. and Ruben took to the hills and escaped, I was taken to the hospital by the police and after my statement was obtained but I refused to confess and at the station I spent three days at the station before the case was transferred to C.I.I.D that what I have to say for now.” (See pages 83- 85 of the printed record of appeal).
By the above statement of the Appellant, it clearly suggested that the Appellant actively participated in committing the offence of armed robbery.
It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR – 43603 (SC) P. 14, PARAGRAPH A-E. His Lordship Sanusi, JSC clearly stated the position of the law thus:
“A Confessional Statement simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See ALABI V. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI V. STATE (2015) 6 – 7 SC (PT. 1) 83, OSETOLA AND ANOR VS. STATE (2012) 6 SCNJ 321, NWACHUKWU VS. THE STATE (2002) SCNJ 230, DOGO V. THE STATE (2013)2-3 SC (PT. III) 75 at 92 – 94.”
The Respondent has strenuously contended before the Court that the Appellant confessed to the alleged offences in his extra-judicial statements Exhibits “A1 & A2”. The Appellant denied making Exhibits “A1 & A2”. In law, the denial may not help him as he can be convicted on the statement which he retracted. The law allows it. However, in law can the Appellant be convicted on the basis of Exhibits “A1 and A2” alone? In IMEPURUNGU VS. THE STATE (2019) LPELR -47047 (CA), I restated the position of the law briefly as follows:
“In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra-judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement, the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say.” See also AZABADA VS. STATE (2014) LPELR – 23017 (SC), STATE VS. MUHAMMED MASIGA (TSOLO) 2017 LPELR – 43474 (SC).” The testimony of the PW1 and PW2 was sufficient corroboration of the Exhibits “A1 and A2”. In UDO VS. THE STATE (2018) LPELR – 43707 (SC) at P. 22, PARAS. A – B, his Lordship Rhodes – Vivour, JSC held that:
“Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.”
The law is that the evidence of an eye witness is one of the best evidence to sustain a conviction of an accused person, an on the spot account of what an eye witness (PW1 & PW2) saw at the scene of the alleged offence, it is sufficient to sustain a conviction. See SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73, AKINMOJU VS STATE (2000) 6 NWLR (PT. 662) 608 and AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171. The PW1 and PW2 gave a clear and detailed account of what they saw at the scene.
The Appellant testified as DW1 and stated the fact he was invited by one Dauda for iron bending work and on reaching there he was arrested by the men and taken to State CID where he was tortured and unconscious and while on admission at the hospital, a paper was given to him by one of the IPO’s to sign else medication would not be given or administered on him which he did signed before he was arraigned at the trial Court. Four (4) others testified at DW2 – DW5 give their testimony about the character of the Appellant. See pages 121 – 122 of the printed records of appeal.
The statement of the Appellant to the police, Exhibits A1 and A2 is clear and leaves no room for doubt that he was one of the gang members. The confession of an accused person is usually the best evidence, coming from the horse’s mouth so as to say in a criminal trial. An admission of having committed the offence is the best evidence in a trial and it plays a major role in the determination of the guilt of the accused person and the Court can rightly convict on the confession if it comes to a conclusion that the confession is voluntary. The testimony of the Appellant and his witnesses are afterthought and I according discountenanced. In the present case, the learned trial Judge after the trial within trial did hold that Exhibits A1 and A2 were voluntarily made, therefore the issue of the voluntariness does not arise here. I would add on the effect of a confession of the truth. In TIRIMISIYU ADEBAYO VS. THE STATE (2014) LPELR – 22988 (SC) PP. 46 – 47, PARAS. E – B, His Lordship Ariwoola, JSC explained it thus:
“On the confession of an accused person, this Court had held that the: “evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See REP. VS. CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC 63 at 68, JIMOH YESUFU VS. THE STATE (1976) 6 SC 167.” INUSA SAIDU VS. THE STATE (1982) 4 SC 41 at 58 – 59. In OGOALA VS. THE STATE (1991), this Court per Olatawura, JSC (of blessed memory) stated that “a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused.”
See OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 25 SC and OBOT VS. STATE (2014) LPELR – 23130 (CA).
On the offence of conspiracy, it is trite that the offence of conspiracy could be inferred since it is virtually impossible to prove criminal acts of the accused person by direct evidence done in pursuance of a criminal purpose in common in agreement with one another. The Appellant was charged with criminal conspiracy pursuant to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act (supra). Conspiracy generally has been variously defined by the Apex Court. In STATE VS. SALAWU (2011) LPELR – 8252 (SC) PP. 38 – 39, PARAS E – A, (also reported in (2011) 18 NWLR PT. 1279 P. 580) His Lordship Muhammad, JSC defined it thus:
“The general definition assigned to the word “conspiracy,” in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition. In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines “conspiracy” as follows: “(1) when two or more persons agree to do or cause to be done – (a) An illegal act; or (b) An act which is not illegal by illegal means.”
See also KAYODE VS. STATE (2016) LPELR – 40028 (SC) P. 32, PARAS. A – B, IRENE NGUMA VS. ATTORNEY – GENERAL, IMO STATE (2014) LPELR – 22252 (SC) PP. 31 – 32, PARAS F – A; (2014) 7 NWLR (PT. 1405) P. 115, GABRIEL OGOGOVIE VS. THE STATE (2016) LPELR -40501 (SC) P. 25, PARAS. A – C, OBIAKOR & ANOR VS. STATE (2002) LPELR – 2168 (SC) P. 13, PARAS. C – F and OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 29 – 30, PARAS. F – E. The trial Court was satisfied with the contents of Exhibits A1 & A2, the Appellant’s confessional statement, where he gave a graphic account of how he was introduce through a phone call and the role he played in actualizing their plan and robbed PW1 and PW2. It could be rightly inferred that the Appellant and (1) Ruben .M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos conspired to rob their victim PW1 and PW2.
I agree with the submission of the learned counsel to the Respondent that the prosecution led cogent and compelling evidence to show that the Appellant acted in concert with others to rob their victims. The pieces of evidence and those of PW1 and PW2 remained uncontroverted by the Appellant. No doubt, the Appellant and others acted as one, with a common purpose and in agreement to commit armed robbery. The trial Court was right to have held that the prosecution established the offence of criminal conspiracy against the Appellant.
It was also contended by the learned counsel to the Appellant that the trial Court mentioned “Killed” (culpable homicide) while determining the offence of conspiracy, it is an oversight because both parties knows the offences for which the accused is standing trial which offences are armed robbery and conspiracy.
The Appellant’s counsel challenged the appellant’s conviction and sentence on the basis that there was no identification parade. The question at this juncture is: When does the issue of identification arise? Identification parade is only necessary in the following circumstances:
1. Where the victim/witness did not know the accused before and the first acquaintance with him is during the commission of the offence.
2. Where the victim (witness) was confronted by the defendant for a very short time; and
3. Where the victim (witness) due to time and circumstance might not have had the opportunity of observing the features of the accused.
See IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455. The issue of identification therefore would only arise where the identity of the person that committed an offence is unknown. In OCHIBA VS. STATE (2010) LPELR – 9002 (CA) P. 13, PARAS. A – B, his Lordship Rhodes-Vivour, JCA (as he then was) simply put the position of the law thus:
… It is only when the identity of the accused person (appellant) is really in issue that an identification parade becomes necessary. ALABI VS. STATE 1993 7 NWLR PT. 307, P. 511, ORIMOLOYE VS. STATE 1984 10 SC P. 138, ANYANWU VS. STATE 1986 5 NWLR PT. 43 P. 612.”
See also FATAI VS. STATE (2013) LPELR – 20182 (SC).
An identification parade is necessary where the arrest of the accused person is based on suspicion as opposed to where the accused person is apprehended on the spot, as happened in the present case. I am at one with the submission of the learned State Counsel, that the Appellant was one of the robbers arrested at the scene of crime that robbed the victims on the fateful day considering the evidence of the PW1 and PW2. The learned counsel to the Appellant did not controvert these pieces of evidence.
The Appellant voluntarily confessed to the crime, an identification parade was unnecessary in this case, the Appellant having been caught at the scene committing the offence. The Appellant was fixed at the scene of crime. In OLAOYE VS. STATE (2018) LPELR – 43601 (SC). In respect of the appellant’s confessional statement shelving the need for an identification parade the Apex Court held that:
“…the appellant had identified himself when in his confessional statement Exhibit ‘H’, he had fixed himself at the scene of the crime on the day of the incidence. The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.”
See also IBRAHIM VS. STATE (1991) LPELR – 1404 (SC) PP. 11 – 12, PARAS. F – C.
A careful look at the testimony of the PW3 he stated that:
“… I work with the State CID Yola D8 section. Yes I now the defendant. On the 30th day of November, 2015, I was in my office when a case of criminal conspiracy and armed robbery was transferred from Lamurde Police Station to the State C. I. D. Yola for discreet investigation. I then records the statement of the one the victim one Samaila Yahya. PW1 Sgt. Samaila Audu recorded that statement of the defendant herein in my present. Sgt. Samaila Audu has been transferred to Edo State Police Command as at 2016…”
Under cross-examination, it was stated thus:-
“I was around when the statement was taken and it was the IPO Sgt. Ismaila Audu that recorded the Defendant’s statement. The statement of the defendant was taken in English language. I am aware that the defendant does not understand English language. It is true that it is the IPO who records the statement…. Five of us were on the team. Detective Usman Zubairu, Detective Ismaila Audu, the IPO, Detective Usman Sanda, Detective Abdul Abdulhamid and Detective Ahmed all also interviewed the defendant.”
From the above, it is pertinent to consider or rather observe the testimony of PW1 and PW2, the robbery took place at night at about 8:30pm to 8:40pm and the PW1 stated that there was no moonlight and under cross-examination that he only saw the accused for the first time. The PW1 continued that the robbers collected their properties and immediately insisted they took them to the house of PW2 with all that they collected from the robbery and at the house, the PW2 stated that (the Appellant) and two others were arrested. It was also stated by the PW2 under cross-examination also that he did not recognize the accused at the scene. See pages 92 – 94 of the printed records of appeal. It is trite that where it has been severally held that weapon(s) used for robbery must not be tendered to secure the conviction of an accused because weapons can be easily discarded. See SARIRU VS. THE STATE (2019) LPELR – 4686 (CA), JAMES SIMON VS. TH STATE (2017) LPELR -41988 (SC), AWOSIKA VS. THE STATE (2018) LPELR – 44351 (SC) PP. 42-43, PARAS D-G and in my judgment in OKOH VS. THE STATE (2008) LPELR – 8352 (CA). The minor discrepancies as made out by the learned counsel to the Appellant on the prosecution’s case are not material contradictions, which cannot affect the credibility of the prosecution witnesses. See EDUENOH VS. STATE (2019) LPELR – 48345 (CA) AND AKPA VS. STATE (2007) 2 NWLR (1019) 500 AT 528 PARAS D – G.
No doubt the offences of Criminal Conspiracy and Armed Robbery were proved against the Appellant beyond reasonable doubt. I cannot fault the judgment of the trial Court.
In the final analysis, the appeal is dismissed for lacking in merit. The Judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in advance the draft copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court. I adopt the lead judgment as mine with nothing further to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Chidi Nwaoma Uwa, JCA. I entirely agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.
Appearances:
A. G. Anafi, Esq. For Appellant(s)
Z. Y. Usman, Esq. Senior State Counsel, Adamawa State Ministry of Justice. For Respondent(s)
