MUSA ISA v. THE STATE (2014)

MUSA ISA v. THE STATE

(2014)LCN/7341(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/K/66/C/2014

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

In criminal proceedings the burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt and the burden never shifts. The prosecution has the duty to prove all the ingredients of the offence charged beyond reasonable doubt. The standard of prove is such that, if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See; Omogodo Vs State (1981) 5 SC 5. Amodu Vs State (2010) 2 NWLR (Pt. 1177) Pg. 47 at 68-69. per. ABDU ABOKI, J.C.A.

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

It is trite law that in order to convict for the offence of armed robbery, the prosecution must prove the following;
1. That there was a robbery
2. That the accused participated in the robbery; and
3. That the accused was armed or was in company of those who were armed with offensive weapons. Once the prosecution proves the above ingredients beyond reasonable doubt, the Court can safely convict for armed robbery. See; Olayinka Vs State (2007) 9 NWLR (Pt. 1040) 561. per. ABDU ABOKI, J.C.A.

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT

The expression beyond reasonable doubt does not mean proof beyond all shadow of doubt, it simply means that the evidence of the prosecution against an accused person must be strong and direct, leaving no remote possibility which can be dispensed with. In other words the prosecution is required to produce positive and credible evidence which must be direct, or if circumstantial, must be of such quality or cogency that a Court could safely rely on it to decide the case. See the cases of; Amodu Vs The State (Supra) at 69. Adetola vs The State (1992) 4 NWLR (Pt. 235) page 267; Mbenu Vs State (1988) 3 NWLR (Pt. 84) page 615. per. ABDU ABOKI, J.C.A.

EVIDENCE: PROOF OF GUILT; WHETHER IT IS NOT NECESSARY TO TENDER THE WEAPON OF THE ALLEGED ROBBERY IN ORDER TO ESTABLISH THE GUILT OF THE APPELLANT

It is not necessary to tender the weapon of the alleged robbery in order to establish the guilt of the Appellant. See; Tanko vs State (2008) 16 NWLR (Pt. 1114) at 639. per. ABDU ABOKI, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHETHER THE COURT SHOULD GIVE FULL CONSIDERATION TO THE DEFENCE OF ALIBI, WHEN THE DEFENCE OUGHT TO BE SET UP AND THE DUTY OF THE ACCUSED RELYING ON THE DEFENCE OF ALIBI TO GIVE DETAILED PARTICULARS OF HIS WHEREABOUT ON THE DAY OF THE OFFENCE

It is trite law that alibi can be raised as a defence in criminal allegation, where evidence placed before the Court clearly demonstrated that the accused person seek to rely on alibi, that defence cannot be denied to the accused person. Full consideration should be given to whatever plausible defence relied upon by the defence. See; Fatai Vs State (2008) 3 NCC pg. 145 at 161-162.
However, whenever an accused person intends to set up a defence of alibi, he should do so at the earliest opportunity during investigation to enable the investigating police officer investigate the defence of alibi. See the case of, IKE VS STATE (2010) 5 NWLR (Pt. 1186) 41. Where the prosecution fails to investigate the defence of alibi or the Court fails to examine such defence and it is demonstrable that the failure would lead to miscarriage of justice, the conviction would on appeal be quashed. Also, in order to take advantage of defence of alibi, the accused person must give a detailed particularisation of his where about on the day of the offence which include not just the specific places where he was, but additionally, the people in whose company he was, the addresses of where he was and what if any transpired at the said time and places. See: Udeodebere & 2 Ors Vs The State (2001) 6 SCNJ 54 at 66-67. per. ABDU ABOKI, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; WHEN WOULD THE PROSECUTION SUCCEED IN PROVING THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT IN A CRIMINAL CASE

EVIDENCE: PROVING THE GUILT OF AN ACCUSED PERSON; WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

It is settled that the guilt of an accused person can be proved by;
a. The confessional statement of the accused;
b. Circumstantial evidence, or
c. Evidence of eye witness of the crime
It should be noted that one does not always need an eye witness account to convict an accused person, if the charge can otherwise be proved. per. ABDU ABOKI, J.C.A.

EVIDENCE: CONFESSION; WHAT IS A CONFESSION AND WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT EVEN WHEN RETRACTED

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. See: Saidu Vs State (1982) 3 S.C 41.

Confession in criminal proceedings, like admission in civil proceedings, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence comes out from the mouth of the accused person. There is no better evidence and there is no need for further proof since what is admitted needs no further proof. See; Akpa vs State (2008) 14 NWLR (Pt. 1106) pg. 72 at 100-101. The duty of the trial court is to consider the circumstances under which evidence was given and to decide what weight is to be attached to it. See the cases;
Nwachuku vs State (2002) 2 NWLR (Pt. 751) at 366.
Iga Vs Amakiri (1976) 11 S.C 1.

A free and voluntary confession of guilt, direct and positive, and if duly made and satisfactorily proved, is sufficient without any corroborative evidence, so long as the Court is satisfied as to the truth of the confession. In the instance case the confession of the Appellant is positive and direct.

An accused person’s confession is relevant and should not be disregarded merely because he later resiles from it. What is important is the weight the trial Court attached to such confession and retraction. See the case of;
Ike Vs The State (2010) 5 NWLR (Pt. 1186) Page 41 at 54-55;
Itule Vs Queen (1961) 2 SCNLR 183. per. ABDU ABOKI, J.C.A.

EVIDENCE: EVIDENCE OF A SINGLE WITNESS; WHETHER AN ACCUSED MAY BE CONVICTED ON THE EVIDENCE OF A SINGLE WITNESS AND THE EXCEPTION

It is trite law that an accused person may be convicted on the evidence of a single witness. The only exception is where the offence or charge statutorily requires corroboration. The essence of corroborative evidence is to give support or strength to the assertion of the prosecution. See; Amodu vs State (supra) at 78. However, armed robbery as in the instance case is not one of such offences that require corroboration. See the cases of; Ndidi Vs State (2007) 13 NWLR (Pt. 1052) pg. 533; Tanko Vs State (2008) 16 NWLR (Pt. 1114) pg. 597 at 640. per. ABDU ABOKI, J.C.A.

JUSTICES

ZAINAB A. BULKACHUWA (OFR) Justice of The Court of Appeal of Nigeria

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

MUSA ISA Appellant(s)

AND

THE STATE Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of Katsina State High Court of Justice delivered on 12/11/2012 by I. B. Ahmed J. Whereby the Appellant was convicted and sentence to death for the offence of Armed Robbery.
The single count charge against the Appellant upon which he was convicted is adumbrated as follows;
THE CHARGED:
“That you Musa Isah and others at large on or about the 5th day of October, 2002 at Wurma village in Kurfi Local Government Area of Katsina State did an act to wit: Jointly and Severally beat on SANUSI AHMED to a state of unconsciousness and robbed him of the sum of N7,000.00 while you were armed with offensive weapons to wit; Guns, Knives, Clubs and thereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special provisions) Act Cap 398 Laws of the Federation 1990 as amended.”

To prove its case the prosecution called 6 witnesses and tendered the confessional statement of the Appellant (Exhibit 1A & 1B). The Appellant testified in his defence and called one other witness.
In convicting the Appellant, the trial Court in its judgment held, inter alia as follows;
“In the present case, there was robbery, the victims were not only robbed but saw the person who robbed them with arms as they knew him both prior and at the time of the robbery. I once again hold the view that the accused person has failed to give full account of himself of the date of the incident to convince the Court that he was either not at the scene or if at the scene, was doing something else other than attacking the victims.
I therefore reject the accused person’s defence in its entirety as mere denial of committing the offence was nothing but an afterthought. This Court, in view of the foregoing assessment of the prosecution and defence witnesses, is left in no doubt that the ingredients of the offence of armed robbery against the accused person have been fully proved beyond reasonable doubt as required by law and I convicted him as charged.”

The trial Court accordingly sentences the Appellant to death and ordered that the he be hanged by neck until he is dead.
Dissatisfied with the judgment of the trial Court, the Appellant who is now a prisoner on the death roll at Central Prison Katsina by leave of this Court filed a notice of appeal dated 11th November, 2013 containing 8 grounds of appeal.

Briefs of argument were filed and exchanged by counsel to the parties in accordance with the rules of practice and procedure of this Court.
The Appellant’s brief of argument prepared by Okechukwu Nwaeze Esq. was dated 20th February, 2014 and file on the 21/02/2014. Learned counsel for the Appellant adopted the said brief as the Appellant’s argument in this appeal and urged the Court to allow this appeal and set aside the Judgment of the lower Court.

The Respondent’s brief of argument prepared by Abdur-Rahman Umar Esq. was dated 27th May, 2014 and file on the 2/06/2014. Learned counsel to the Respondent adopted the said brief as the Respondent’s argument in this appeal and urged the Court to affirm the decision of the trial Court and dismiss this appeal for lacking in merit.

The Appellant in his brief of argument formulated 2 issues from the 8 grounds of appeal contained in his notice of appeal. The said issues are adumbrated as follows;
“ISSUE ONE.
Whether the prosecution proved its case beyond reasonable doubt, connecting the commission of the crime with the Appellant, to warrant the learned trial judge convicting and sentencing the Appellant to death by hanging. (Distilled from Grounds 1, 4, 6, 7 and 8).
ISSUE TWO.
Whether from the totality of the evidence before the trial Court the learned trial judge was right to have relied on the contradictory evidence of PW1 and the Appellant’s purported confessional statement to convict the Appellant. (Distilled from grounds 2, 3 and 5)”
The Respondent adopted the 2 issues for determination formulated by the Appellant as their issues for determination in this appeal.
I also adopt same for the determination of this appeal.

ISSUE ONE.
Whether the prosecution proved its case beyond reasonable doubt, connecting the commission of the crime with the Appellant, to warrant the learned trial judge convicting and sentencing the Appellant to death by hanging. (Distilled from Grounds 1, 4, 6, 7 and 8)
Learned Appellant counsel in his argument contended that there are certain elements which the prosecution must prove before it can succeed on a charge of Armed Robbery. He referred the Court to the cases of;
John Vs State (2011) 18 NWLR (Pt. 1278) 353 SC.
State Vs Salawu (2011) 18 NWLR (Pt 1279) 580 SC.

He submitted that the prosecution must prove every element and that failure to prove an element meant that the prosecution has failed to prove the offence beyond reasonable doubt.
Learned counsel referred the Court to the evidence of PW1 during Examination in chief at page 13 of the printed record.

He submitted that from the evidence of PW1, PW2, PW3 and PW4, it is not in dispute that there was a robbery, but that the prosecution failed to prove that the Appellant was amongst those that robbed PW1 on 05/10/2003.

He argued that PW1 and PW2 gave evidence that they saw the Appellant at the scene of the crime, but the evidence was discredited during cross-examination as they were not able to answer questions on how the Appellant attacked them. He maintained that PW3 and PW4 told the Court that they saw the Appellant on their way to the scene of the crime. He submitted that there is nothing linking the Appellant with the commission of the crime. He referred the court to the cases of;
Ogudu vs State (2011) 18 NWLR (Pt. 1278) 1 at 32.
Osuagwu vs State (2013) 5 NWLR (Pt. 1347) 360 SC
Adeyemi vs State (2013) 3 NWLR (Pt. 1340) 78 SC.

He maintained that the prosecution never tendered any weapon. He submitted that all incriminating items obtained from the scene of the crime by the prosecution were never tendered in evidence. He referred the Court to page 42 of the printed record, particularly the proceedings of 13th March, 2012.
Learned counsel argued that the burden of proof lies on the prosecution. He referred the Court to Section 136 of the Evidence Act and Section 36 of the CFRN 1999 as amended. He submitted that the prosecution failed to establish the 2nd element of the offence as stated in Ogudo vs State (supra). He urged the court to so hold.

He submitted that during the defence at the lower Court, the Appellant raised a defence of alibi. He referred the Court to page 45 of the printed record. Where the Appellant stated inter alia as follows;
“I was one day sitting with my neighbour when I heard a dog inside my house barking at about 1.00am”
He argued that even though it has been decided in plethora of cases that defence of alibi must be raised at the earliest possible time, when raised during trial as in the instance case, the burden of proof still lies on the prosecution. He maintained that it is not for the defence to prove alibi, it is for the prosecution to disprove the Appellant defence of alibi. He submitted that the trial Court failed to evaluate the defence of the Appellant. He referred the Court to the cross examination of DW1 by the prosecuting counsel at page 47-48 of the printed record.

Learned counsel contended that the Appellant has discharged the burden placed on him in law by stating his whereabouts and who he was with at the time of the crime. He urged the Court to so hold.
Learned counsel submitted that the Court must consider all defence raised by an accused person in a trial and the standard of proof required to establish a plea of alibi is based on the balance of probabilities. He referred the Court to the cases of;
Edoho Vs State (2010) 14 NWLR (Pt. 1214) 615 at 681-682.
Wakala Vs State (1991) 8 NWLR (Pt. 211) 552.

Learned counsel argued that the trial Court rejected the Appellant’s defence of alibi on the ground that it was a mere denial and an afterthought. He submitted that the defence of alibi can only be rejected when the prosecution has adduced contrary evidence. He maintained that the Appellant has defended his defence of alibi at the trial Court and had the police given the Appellant the opportunity at the police station he would have raise his defence of alibi earlier for them to investigate. He insisted that the Appellant defence of alibi was corroborated by the evidence of PW5 and DW2 at page 24 and 51-52 of the printed record. He also referred the Court to the cases of;
Onafowokan Vs State (1987) 3 NWLR (pt. 61) 538 at 553.
Ikumonihan Vs State (2014) 2 NWLR (pt. 1392) 564.
Morka Vs State (1998) 2 NWLR (pt. 537) 294
Azeez Vs State (2005) 8 NWLR (pt. 927) 312 at 327.

Learned counsel insisted that the Appellant was no where near the scene of the crime and therefore he could not be expected to have committed the offence he was convicted.
He submitted that the Respondent had not established a case of armed robbery against the Appellant. He urged the Court to resolve this issue in favour of the Appellant.
Learned Respondent’s counsel on the other hand contended that the answer to the first issue for determination is in the affirmative. He submitted that the Respondent has discharged the onus of proof placed on it at the trial Court.

He conceded that for the offence of armed robbery to be established the following ingredients must be proved by the prosecution;
a. That there was a robbery or series of robberies;
b. That the robbery or robberies was an armed robbery; and
c. That the accused person took part in the robbery.
He referred the Court to the case of; Sowemimo Vs State (2012) 2 NWLR (Pt. 1284) 372 at 379.

He argued that the prosecution has proved the first ingredient of the offence of armed robbery and even the Appellant conceded to that fact. He referred the court to paragraph 4.4 at page 7 of the Appellant’s brief of argument.
Learned counsel submitted that contrary to the Appellant’s submission that there is nothing linking the Appellant with the commission of the crime, the Respondent has successfully linked the Appellant with the robbery through the testimonies of all the prosecution’s witnesses particularly PW1, PW2, PW3 and PW4 who were the victims of the robbery and eye witnesses to the incidence at the house of PW1 and PW2 on 5/10/2002.

Learned counsel referred the Court to the testimonies of PW1 (at pages 13-14 of the printed record), PW2 (at pages 16-17 of the record), PW3’s cross-examination (at pages 20 of the printed record) and PW4 (at
page 21 line 4-5 of the printed record), he argued that the testimonies were never discredited or contradicted. He submitted that the position of the law is to the effect that the trial Court will fail in its duty if it refuses to convict on unchallenged and uncontroverted evidence. He referred the court to the case of; Ada vs state (2008) 13 NWLR (pt. 1103) 149 at 166.

He maintained that contrary to the submission of the Appellant in paragraph 4.17 of his brief that he defended his defence of alibi at the trial Court, he submitted that the true position was that the Appellant had never raised any alibi at the police station to warrant the police investigate same. He maintained that the Appellant only gave confessional statement which was admitted in as exhibit 1A and that his denial of same will not affect the admissibility of the statement. He referred the court to the case of; Lasisi Vs State (2013) NSCQR 54.1 pg. 39 at 67

Learned counsel submitted that assuming without conceding that the Appellant’s defence of alibi was in order, it has been logically demolished by the testimonies of PW1, PW2, PW3 and PW4. He referred the Court to the cases of;
Ndukwe Vs State (2009) NSCQR 37 pg. 425 at 433.
Aliyu Vs State (2013) NSCQR 54.1, 509 at 526.
He argued further that the Appellant contradicted himself in paragraph 4.10 of his brief, when he submitted that he and DW2 were also victims of the said robbery of 5/10/2002 and still maintained that he was at home with his neighbour when the incidence took place. He submitted that this is clear contradiction on the part of the Appellant. He referred the Court to the case of; Ochemaje Vs State (2008) 15 NWLR (Pt. 1109) at 93-94.

On the Appellant’s contention in paragraph 4.7 and 4.8 of his brief of argument, that the prosecution never tendered any weapon in evidence, learned counsel submitted that it is not mandatory that the prosecution must tender the weapon used in a robbery case in order to prove its case. He referred the Court to the case of; Olayinka Vs State (2007) 9 NWLR (Pt. 1040) 561 at 575.

On the Appellant’s contention in paragraph 4.20 of his brief that failure of the Respondent to discredit the Appellant’s defence of alibi cast doubt on the mind of the Court and it should be resolved in favour of the Appellant, learned Respondent’s counsel submitted that it is not the duty of counsel to say that doubt exists, but that of the Court itself and more so no doubt existed in the evidence of the prosecution. He urged the Court to so hold.

Learned counsel referred the Court to page 85 of the printed record, where the Court assessed and analyzed the entire evidence of both parties in its judgment and submitted that the trial Court was not in doubt that the Appellant committed the offence for which he was convicted. He urged the Court to so hold.

Learned counsel finally submitted that the prosecution had proved its case against the Appellant beyond reasonable doubt. He urged the Court to so hold and resolved this issue in favour of the Respondent.

In criminal proceedings the burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt and the burden never shifts. The prosecution has the duty to prove all the ingredients of the offence charged beyond reasonable doubt. The standard of prove is such that, if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person.
See;
Omogodo Vs State (1981) 5 SC 5.
Amodu Vs State (2010) 2 NWLR (Pt. 1177) Pg. 47 at 68-69.

It is trite law that in order to convict for the offence of armed robbery, the prosecution must prove the following;
1. That there was a robbery
2. That the accused participated in the robbery; and
3. That the accused was armed or was in company of those who were armed with offensive weapons.
Once the prosecution proves the above ingredients beyond reasonable doubt, the Court can safely convict for armed robbery. See; Olayinka Vs State (2007) 9 NWLR (Pt. 1040) 561.

The expression beyond reasonable doubt does not mean proof beyond all shadow of doubt, it simply means that the evidence of the prosecution against an accused person must be strong and direct, leaving no remote possibility which can be dispensed with. In other words the prosecution is required to produce positive and credible evidence which must be direct, or if circumstantial, must be of such quality or cogency that a Court could safely rely on it to decide the case. See the cases of;
Amodu Vs The State (Supra) at 69.
Adetola vs The State (1992) 4 NWLR (Pt. 235) page 267;
Mbenu Vs State (1988) 3 NWLR (Pt. 84) page 615.

In the instance case the Respondent in order to prove its case called 6 witnesses and tendered confessional statement of the Appellant (exhibit 1A & 1B).
The contention of the Appellant under this issue is that the prosecution failed to prove that the he was amongst those that robbed PW1 on 05/10/2003 and also the trial Court failed to consider his defence of alibi. In the instance case the testimony of PW1, PW2, PW3 and PW4 clearly showed that the Appellant was among the robbers and the evidence was not controverted by the Appellant. The trial Court has a duty to act upon the said uncontradicted or unchallenged evidence. See; Abdullahi Vs State (2008) 3 NCC Pg. 549 at 563.

In Olayinka Vs State (2007) 4 S.C (Pt. 1) 210 the Supreme Court Per; F. TABAI JSC stated inter alia as follows;
“With respect to the submission of the Appellant about the failure of the prosecution to tender the weapon of the alleged robbery and its effect on the prosecution, I do not think there is any principle of law requiring the tendering of the weapon of the alleged robbery to establish the guilt of the accused person…”
Whether or not the prosecution needed to tender weapon which the Appellant allegedly used, depends on the circumstance of the case. More so it is not the requirement of the law that the Appellant himself must be armed if it can be shown that one of the robbers was armed, the requirement is satisfied. In the instance case there is admissible confessional statement of the Appellant wherein he admits committing the offence, also he is not denying that there was a robbery. It is not necessary to tender the weapon of the alleged robbery in order to establish the guilt of the Appellant. See; Tanko vs State (2008) 16 NWLR (Pt. 1114) at 639.

Where the prosecution fails to investigate the defence of alibi or the Court fails to examine such defence and it is demonstrable that the failure would lead to miscarriage of justice, the conviction would on appeal be quashed.

Also, in order to take advantage of defence of alibi, the accused person must give a detailed particularisation of his where about on the day of the offence which include not just the specific places where he was, but additionally, the people in whose company he was, the addresses of where he was and what if any transpired at the said time and places. See: Udeodebere & 2 Ors Vs The State (2001) 6 SCNJ 54 at 66-67.
In the instance case the Appellant fail to give such comprehensive information at earliest possible time to enable the prosecution to do their investigation. It is only after the Appellant has provided such particulars, that the onus shift to the prosecution to prove that the alibi was not true. See: Fatai vs State (2008) 3 NCC at 162.

For the Appellant to raise the defence of alibi while testifying at his trial as in the instance case is to deliberately deny the prosecution its right and duty to investigate the defence. See the case of Gachi Vs The State (1965) NMLR 333.
The Appellant’s defence of alibi which he tried to establish consist of vague accounts and insufficient particulars of his where about. The Appellant’s plea of the defence of alibi is devoid of material facts worthy of investigation.

It has been argued on behalf of the Appellant that had the police given the Appellant the opportunity at the station, he would have raised his defence of alibi earlier for them to investigate. The Appellant had however, not led any evidence to show how the police denied him the opportunity to present his defence of alibi at the station.

In a criminal case, if the evidence adduced by the prosecution is adequate in implicating an accused person, the prosecution would then have succeeded in proving the guilt of the accused beyond reasonable doubt. See the cases of;
Tanko Vs State (Supra) at 640.
Bakare Vs State (1987) 1 NWLR (Pt. 52) 579.
Ubani vs State (2003) 18 NWLR (Pt. 851) page 224.
In the instance case the evidence against the Appellant as contained in testimonies of PW1, PW2, PW3, PW4 and exhibit 1A have adequately implicated the Appellant.
I resolved this issue in favour of the Respondent.

ISSUE TWO
“Whether from the totality of the evidence before the trial Court the learned trial judge was right to have relied on the contradictory evidence of PW1 and the Appellant’s purported confessional statement to convict the Appellant. (Distilled from grounds 2, 3 and 5)”

On this issue the learned Appellant’s counsel referred the Court to the testimony of PW1 under cross examination at page 13-16 of the printed record. He submitted that PW1 contradicted himself and there is likelihood that he never saw the faces of the people that robbed him since he was in shock and thereafter became unconscious.
He contended that for a statement to be contradictory it must be direct opposite of what was earlier stated or spoken. He referred the Court to the case of; Okereke Vs State (1998) 3 NWLR (Pt. 540) 75 at 91.

He argued that where there are contradictions in the evidence of the prosecution, such contradictions are fatal to the prosecution’s case, when they are substantial and fundamental to the main issue before the Court. He submitted that the testimony of PW1 are full of contradictions which are substantial and fundamental to the issue before the trial Court as it touches on the identity of the person who carried out the robbery. He referred the Court to the cases of;
Okereke Vs State (Supra)
F.R.N Vs Iweka (2013) 3 NWLR (Pt. 1341) 285
Gabriel Vs State (1989) 5 NWLR (Pt. 122) 457
Balogun vs A.G Ogun State (2001) 14 NWLR (Pt. 733) 331 at 350-351

He insisted that the contradictions in the prosecution’s case raised doubt as to whether the Appellant is the one who committed the offence and that such doubt should have been resolved in favour of the Appellant.
He also referred the Court to the cases of;
Folorunsho Vs State (1993) 8 NWLR (Pt. 313) 612 at 625.
Dogo Vs State (2001) 3 NWLR (Pt. 699) 192 at 206
Igbi Vs State (2000) 3 NWLR (Pt. 648) 169 at 200
Nwabueze Vs State (1988) 3 NWLR (Pt. 86) at 16.

Learned counsel contended that the guilt of an accused person can be proved by any of the following means;
a. His confessional statement;
b. Circumstantial evidence; or
c. Evidence of eye witness(es) of the crime.
He submitted that the prosecution through PW6 tendered Exhibit 1A, the confessional statement of the Appellant and the trial Court relied on it in convicting the Appellant. He argued that even though a Court can convict on the accused person’s confessional statement, superior Courts have held that where the offence is capital in nature there should be some corroborative factors or evidence. In other words it is desirable to have outside the confessional statement some evidence which makes it probable that the confession was true. He referred the Court to the cases of;
Stephen Vs State (2013) NWLR (Pt. 1355) pg.153.
Shuromo Vs State (2010) 16 NWLR (Pt. 1218) 65 at 119
Akpa Vs State (2007) 2 NWLR (Pt. 1019) 500 at 527.
Dawa Vs State (1980) 8-11 SC 236
Udofia Vs The State (1984) 12 SC 139.
He submitted that there is nothing outside the confessional statement of the Appellant to show that the purported statement is true.

Learned counsel argued that in criminal cases, corroboration must come from the prosecution not from the defence. He submitted that there is nowhere in the evidence of PW1 and PW2 where they stated that they had intention of selling their car prior to the robbery incident and in the PW1’s evidence he never told the trial Court that there was a struggle between him and the Appellant. Therefore, there is no evidence corroborating that the Appellant was in PW1’s house and had struggle with him as stated in the confessional statement.
Appellant’s counsel contended that the Appellant stated that he made the statement under duress and trial within trial was conducted. He argued that the facts contained in Exhibit 1A are inconsistent with the prosecution’s evidence and statement failed the evaluation test and ought not to be relied upon.

He submitted that based on the authorities cited the trial Court did not evaluate the confessional statement before relying on it to convict the Appellant and the evidence adduced by the Respondent in the trial Court was not enough to establish a case of armed robbery against the Appellant. He referred the Court to the cases of;
Obi Vs State (2013) 5 NWLR (Pt. 1346) pg. 68 at 84.
Onagoruwa vs The State (1993) 7 NWLR (Pt. 303) at 49.

Learned counsel insisted that the trial Court ought to discharge and acquit the Appellant. He urged the Court to so hold. He also referred the Court to the cases of;
Archibong Vs The State (2006) 14 NWLR (Pt. 1000) 349
Shande Vs State (2005) 12 NWLR (Pt. 939) 301
Namsoh Vs State (1993) 5 NWLR (Pt. 292) 129.
Learned counsel finally urged the Court to allow this appeal and set aside the judgment of the lower Court delivered on 12th November, 2012.

In his reply the learned Respondent’s counsel submitted that the Appellant contended in paragraph 4.26 of his brief of argument that PW1 contradicted himself during cross examination and that there is likelihood that he never saw the faces of the robbers, he submitted that contrary to the Appellant’s assertion, there was no contradiction in the testimony of PW1.

He further argued that it is natural for a person to be shocked on seeing an armed robber in his house; however, the shock did not deprive PW1 of his ability to recognise the Appellant whom he knew prior to the attack as his neighbour. Learned counsel submitted that it is not a contradiction that PW1 could not say which of his hands the appellant held the weapons, the incident having taken place in 2002 while the testimony was in 2010, an interval of eight years.

Learned counsel further argued that the Appellant challenged the testimony of PW1 as contradictory, whereas PW2, PW3 and PW4 all testified that the Appellant was among the robbers and was armed. He maintained that assuming without conceding that the testimony of PW1 is contradictory, he submitted that it is not every inconsistency in the evidence of the prosecution witnesses that will be fatal to the case. He submitted that it is only when such contradiction are substantial and fundamental to the main issue and had created doubts in the mind of the Court that an accused may be entitled to benefit there from. He referred the court to the case of; Attah vs State (2010) 10 NWLR (Pt. 1201) 190 at 212 and urged the Court to hold that there was no contradiction in the evidence of the prosecution.

On the Appellant’s submission in paragraph 4.45 of his brief, where he denied making the confessional statement, adding that he made the statement under duress and that a trial within trial was conducted, learned Respondent’s counsel argued that the submission is wrong and misleading. He submitted that there was no place in the record where the Appellant stated that he made the statement under duress and there was no trial within trial conducted at the trial Court. He maintained that the true position is that the Appellant through his counsel stated that he did not make any statement to the police, which made the trial Court to admit the statement in evidence in its ruling.

Learned counsel maintained that the admission of the statements in evidence by the trial Court was in order as retraction of same does not affect its admissibility. He referred the court to the cases of;
Lasisi Vs State (supra) at 67
Oseni vs State (2012) NWLR (pt. 1293) 351 at 357
He argued that the contention of the Appellant in 4.41 and 4.42 to the effect that there is nothing outside the statement to show that it is true, is untrue and misleading. He submitted that the trial Court found corroboration of the statement in the testimonies of PW1 to PW4 and the fact that neither PW1 nor PW2 mention to the trial Court that they intended to sale a car could not affect their testimonies, because the fact in issue is whether the Appellant and others robbed them while armed.

Learned Respondent’s counsel further argued that the contention of the Appellant in paragraph 4.46 of his brief that the Court did not evaluate the confessional statement before convicting the Appellant is not true, he submitted that the trial Court properly evaluate exhibit 1A and that the conviction was not solely on it. He referred the court to 2nd paragraph of page 80 of the printed record and urged the Court to so hold.

In response to the Appellant’s submission that the guilt of an accused can be proved by his confession, circumstantial evidence or evidence of eye witness, learned counsel submitted that the prosecution has proved its case through both confessional statement and evidence of eye witnesses. He referred the court to page 80 line 19 to 23 of the printed record.

Learned Respondent’s counsel insisted that mere raising alibi does not mean it must be accepted by the trial court and the assessment of credibility of witnesses is a matter within the province of the trial Court. He referred the Court to the cases of;
Omotola Vs State (2009) NSCQR 37.2, 963.
Okosi Vs State (1989) 1 NWLR (Pt. 100) at 42
Ndidi vs State (2005) 17 NWLR (Pt. 953) pg. 17 at 32-33.

Learned counsel further submitted that once the evidence of an eye witness to any crime fixes an accused at the scene of crime and identifies him as the perpetrator of the crime, as in the instance case, there can be no defence of alibi. He referred the Court to the case of; Aliyu Vs State (supra) at 536.
He submitted that a charge under Section 1 (2) (b) of the Robbery and Fire arms (Special Provisions) Act as in the instance case, succeeds if the prosecution establishes beyond reasonable doubt that accused stole something and at the time of stealing, threatened to use violence or used violence before or after the stealing. He referred the Court to the case of;
F.R.N Vs Usman (2012) 8 NWLR (Pt. 1301) 141 at 157.
He urged the court to hold that the trial court was right in convicting the Appellant and resolved this issue in favour of the Respondent.

In conclusion he submitted that the findings of the trial Court were supported by credible evidence and that the conviction there upon was right. Learned counsel insisted that this Court cannot interfere with the findings where they are neither perverse nor unsupported by credible evidence. He referred the Court to the case of; Haruna Vs A.G. Federation (2012) 9 NWLR (Pt. 1305) at 448.
He urged the Court to affirm the decision of the trial Court and dismiss the appeal for lacking in merit.

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. See: Saidu Vs State (1982) 3 S.C 41.

It is trite law that an accused person may be convicted on the evidence of a single witness. The only exception is where the offence or charge statutorily requires corroboration. The essence of corroborative evidence is to give support or strength to the assertion of the prosecution. See; Amodu vs State (supra) at 78. However, armed robbery as in the instance case is not one of such offences that require corroboration. See the cases of;
Ndidi Vs State (2007) 13 NWLR (Pt. 1052) pg. 533;
Tanko Vs State (2008) 16 NWLR (Pt. 1114) pg. 597 at 640.

In the instance case the proof is based on the evidence of eye witnesses and a confessional statement of the Appellant. The court as an impartial umpire must evaluate the evidence adduced before it in order to arrive at a fair decision, much more so in criminal matters where the liberty of the accused person is at stake. See; Ike vs State (supra) at 58.
I have carefully perused the record of this appeal and there is no doubt in my mind that there was a robbery and the accused took part in it.

On the issue of contradictions in the testimony of PW1 and PW2 alleged by the Appellant, it is now settled that, contradiction to be fatal, the prosecution’s case must go to the substance of the case and should not be of a minor nature as in the instance case. It is a laid down principle of law that it is not every minor contradiction or inconsistency (if any) that will result in a judgment being reversed, or capable of affecting the merit of a case. See the case of; John Agbo vs State (2007) 2 NCC pg. 158 at 189.
This issue is also resolved in favour of the Respondent.

I find no merit in this appeal and it is hereby dismissed. The judgment of Katsina State High Court of Justice, in charge No: KTH/DM/2C/2006 delivered 12/11/2012 by I. B. Ahmed J, is upheld. The conviction and sentence passed on the Appellant are hereby affirmed.

ZAINAB A. BULKACHUWA, J.C.A.: I agree.

UWANI MUSA ABBA AJI, J.C.A.: I read in draft the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered. I entirely agree with the reasoning and conclusion reached by my learned brother that the appeal is devoid of any merit and be dismissed.

The Appellant contended inter alia on issue one that the prosecution failed to prove its case against the Appellant beyond reasonable doubt against him warranting his conviction and sentence to death. He argued that the learned trial judge failed to consider the Appellant’s defence of alibi when he held inter alia that it was a mere denial and an afterthought. It is on this issue of alibi that I would add a word or two.

The Appellant was tried, convicted and sentenced to death for armed robbery. Six witnesses testified for the Respondent and Exhibits 1A and 1B were tendered and admitted in evidence, being Hausa and English versions of the Appellant’s statement to the Police. Four of the six witnesses that testified were victims of the armed robbery that gave direct evidence of seeing the Appellant when they came out from their rooms, armed with a gun, a matchet while the others at large were holding matchet, club, stick etc etc.

It is clear from the Exhibit 1B did not contain any alibi: Testifying before the court, said he was at home together with somebody. Alibi no doubt is a radical defence and it simply means an accused was somewhere else at the time of the commission of the offence and could not have possibly been on the scene to partake of the act. See Akpan vs. The State (2002) 12 NWLR (Pt. 780) 189; Nwabueze vs. The State (1988) 4 NWLR (Pt. 86) 16; Afolalu vs. State (2009) 13 WRN 51 at 79.

In the instant case, it is clear from the record that the Appellant never raised any defence of alibi at the police station at the earliest opportunity for the Police to investigate. It is trite that for the defence to avail an accused, the following requirements must be satisfied:-
a) He must raise it at the earliest opportunity in order to offer the police an opportunity to verify or confirm the facts or otherwise of the defence. See Hassan vs. State (2001) 6 NWLR (Pt. 709) 286 at 305; Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 399; and Nwabueze vs State (1988) 3 NWLR (Pt 86) 16.
(b) Earliest opportunity would preferably be in his extra-judicial statement. Therefore, to raise it while testifying at his trial is to deliberately deny the prosecution of its right and duty to investigate the defence.
Such a ploy cannot avail the accused person. See Ebre v. State (2001) 12 NWLR (Pt. 728) 617. The defence of alibi could not avail the accused person because he raised it during the trial and not during investigation. See Hassan v. State (supra).
(c) The defence must be unequivocal as to the particulars of the accused person’s whereabout, Per Belgore, JSC (as he then was) in Abubakar Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399.
(d) Where an accused person discloses his defence at the earliest time without ambiguity, a burden is cast on the prosecution to investigate it. See Eyisi vs. State (2001) 8 WRN.
(e) An accused person who fails to introduce his defence at the earliest time invites a onerous burden on himself. The onus is on him to prove the alibi, Belgore, JSC (as he then was) in Abubakar Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 399.
If at the trial, an accused who never raised an alibi when making his statement to the Police, but raised the issue of him not being at the locus criminis at the time the offence he is alleged to have committed took place at the trial as in the instant appeal, he raises a new issue entirely from alibi. No wonder the learned trial judge dismissed same with a waive of hand as an afterthought and I so hold. See also Abiriton vs. State (2009) 35 WRN 37 at 97.

It is for this reason and the more detailed reasons in the lead judgment of my learned brother, Abdu Aboki, JCA that I also dismiss the appeal and affirm the judgment of the lower court delivered on the 12/11/2012 convicting and sentencing the Appellant to death by hanging.

Appearances

Okechukwu Nwaeze Esq.For Appellant

AND

S. B. Umar Esq. (DPP) appearing with M. A. Kankia Esq., A. Umar Esq. and S. Y. Wurma Esq.For Respondent