OLUMIDE LANADE v. THE STATE
(2019)LCN/12995(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/IL/C.122/2017
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
OLUMIDE LANADEAppellant(s)
AND
THE STATERespondent(s)
RATIO
THE DEFENCE OF ALIBI
This principle of law is stated in all the cases cited and relied upon by the learned counsel in their respective briefs of argument. See Onyedikachi Osuagwu Vs. The state (supra) cited by the Appellant and Kareem Vs. State (supra) relied upon by the Respondent. However, the law does not allow an accused person to raise this defence at large or casually and it is expected that the prosecution must go ahead to investigate it in whatever form raised. The accused person in raising this defence is expected to give the particulars of his whereabouts, with whom he was at the exact time in issue and what he was doing. See Shehu Vs. State (2009) LPELR-3578 (CA) where this Court succinctly put the position of law regarding the defence of alibi, and held, per OMOLEYE, J.C.A. that:
“It is settled law that for the Appellant to benefit from the defence of alibi, it must be shown that he raised it timeously. In the case of Esangbedo Vs. The State (1989) 7 SCNJ p. 10 at p. 19, the Supreme Court held that, where an accused person stated that he was not at the scene of crime at the material time the offence was allegedly committed, this being a matter especially within his knowledge, the law requires that for his defence of alibi to succeed and in raising the doubt in his favour, an accused person ought to do certain things. He ought to give such details and particulars of his whereabouts so that the Police can investigate. This is the evidential burden on him in his defence of alibi. Merely stating that he was at home on the day of the incident did not automatically entitle him to the defence of alibi. It is a settled principle of law that for a person to take advantage of this defence, he must give a detailed particularization of his whereabouts on the crucial day of the incident. Such will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Although the onus is not on an accused person to prove the defence of “alibi”, it is his duty to raise the defence promptly and properly. The law is therefore that it is not enough for an accused to raise the defence of “alibi” casually, at large or as a last resort as done by the Appellant, in the instant case. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the “alibi”. If the accused said he was in a particular locality or with a particular person(s), he must give a clue as to the specific place, time, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime. For the Police who are saddled with the constitutional duty of investigation of crime among others would however not be expected to go on a wild goose chase for them to be seen to be discharging this duty
See also Okere Vs. IGP (2018) LPELR 44674 (CA), Peter Vs. State (1997) LPELR-2913 (SC) and Egwumi Vs. State (2013) LPELR-2009 (SC) among others. PER ALIYU, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON MUST BE CHARGED TO COURT
In the case of Ibrahim Vs. State (2018) 1 NWLR (pt. 1600) 279 at 319 to 320, the Supreme Court, per Bage JSC, held that:
The Law is grounded on the fact that once a person is accused of a criminal offence, he must be charged to Court. The most important thing about the charge in any criminal case is that it must tell the accused person enough, so that he may know the case alleged against him and prepare his defence. The emphasis is not whether or not there were defects, errors or omissions in the charge, but on whether those defects, errors or omissions could and in fact misled the defence, a defect which does not prejudice the defence is no ground for quashing a charge.
See also Ikpa Vs. State (2018) 4 NWLR (pt. 1609) 175 at 237, (per Odili, J.S.C.), where the Apex Court followed its earlier decision in the case of Ijeoma V. Queen (1962) 2 SCNLR 157 held that even where the prosecution failed to put down all the necessary requirements of a charge, but it was evident that the Appellant was not misled, the trial would not be invalidated. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The Appellant along with one Shina Tajuddeen were arraigned before the Kwara State High Court sitting at Ilorin, (coram I. A. Yusuf, J.) on a five count charge dated the 24th May 2011. The Appellant was charged in respect of counts 1, 2, 3, and 4 with the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(a) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, LFN 2004. The Appellant pleaded not guilty to all the counts of the charge, and at the trial, the prosecution called seven witnesses and tendered exhibits in proof of the charge. The Appellant testified in his defence but did not call any witness. In its judgment delivered on the 31st May 2017, the lower Court convicted the Appellant on counts 1, 2 and 4 for the offences of conspiracy and armed robbery, but discharged and acquitted him of count three, and he was sentenced to death by hanging for the offences he was convicted of.
The Appellant was aggrieved with his conviction and sentence and filed in a notice of appeal on the 28th August 2017 predicated on seventeen
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grounds. The record of appeal was transmitted on the 2nd November 2017, while an additional record of appeal was transmitted on the 28th May, 2018 but deemed duly transmitted with the leave of this Court granted on the 19th September, 2018. The Appellants brief of argument settled by Dr. D. A, Ariyoosu was filed on 28th May 2018, but deemed properly filed and served on the 19th September, 2018. The Respondents brief of argument settled by Jimoh Adebimpe Mumini Esq., the Director of Public Prosecution (DPP), Ministry of Justice Kwara State, was filed on the 11th February, 2019, but deemed properly filed and served on 21st February, 2019. The Appellants reply brief was filed on 1st March, 2019.
On the 4th March, 2019, the appeal was called up for hearing and the learned counsel for the Appellant, Dr. D. A. Ariyoosu leading Halima Jimada Esq., adopted the Appellants brief and the reply brief in urging the Court to allow the appeal, set aside the judgment of the trial Court and discharge and acquit the Appellant. J. A. Mumini Esq., the Director of Public Prosecution of Ministry of Justice Kwara State (DPP), leading Abdulmumeen Busari Esq.
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also adopted the Respondents brief of argument in praying the Court to dismiss the appeal in its entirety, and to affirm the judgment of the lower Court.
The Appellant formulated and submitted the following issues for the determination of this appeal in his brief of argument:
1. What is the effect of the failure of the prosecution to investigate the defence of alibi timeously raised by the Appellant
OR
Whether the learned trial judge was right in dismissing the defence of alibi properly and timeously raised and established by the Appellant and holding that there is no need for the police to investigate the defence of alibi raised by the Appellant.
2. Whether the learned trial judge was not wrong in holding that identification parade is not necessary to link the Appellant with the offence levied against him when the facts and circumstances of the case demand that the formal identification parade be conducted to identify and link the Appellant with the offence levied against him and if a formal identification parade ought to have been conducted, what is the effect of failure to so conduct.
3. Whether the Appellant pleaded
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guilty to offence of armed robbery in respect of count two of the charge against him rather than conspiracy to commit armed robbery and if he did not so plead, what is the effect of the Appellants conviction of an offence he did not plead to.
4. Whether the prosecution was able to establish the offences levied against the Appellant as required by law to have warranted his conviction and sentence as done by the learned trial Judge, regard being had to the copious contradictions in the prosecutions case.
The Respondent adopted the above issues raised and submitted by the Appellant. I will now proceed to consider the arguments of counsel in support of the issues agreed upon by both parties.
APPELLANTS ARGUMENT
The Appellants brief of argument spanned 33 pages of closely typed font. In arguing issue one, Dr. Ariyoosu referred to the extrajudicial statement of the Appellant, made to the police after his arrest (contained at page 27 of the main record of appeal), which was admitted as Exhibit C at the trial, and submitted that having raised the defence of alibi at the earliest opportunity, the police were
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legally bound to investigate that alibi. But there is nothing on record to show that the police carried out any investigation on the Appellants claim that on the date of the robbery, he was at Ilesha or that the police had confirmed this claim from the Appellants landlord to whom he referred them to so confirm. Our attention was drawn to the fact that the Appellant was emphatic that he was at Ilesha on the 26th October, 2009 and 21st August, 2009 both in his statement to the police and in his oral testimony before the lower Court.
We were also referred to the learned trial Judges position on the issue of alibi raised by the Appellant (contained at pages 490 to 491 of the record of appeal), on which the learned counsel argued that the trial judge had embarked on an unsolicited assistance to the prosecutions case by defending the police in the dereliction of their duty. It was contended by the learned counsel that the holding of the trial Court that there was no obligation on the police to investigate the alibi was a tacit attempt to put the burden of investigating and establishing the alibi on the Appellant, which is contrary to
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the position of the law, arguing that the obligation is that of the police and not the Appellant. Learned counsel supported his argument on issue one with the decision in Onyedikachi Osuagwu Vs. The State (2016) 7 S.C. (pt. V) 1 at 40-41, Idemudia Vs. State (2015) ALL FWLR (pt. 800) 1302, Adebiyi V. State (2016) 1-2 S.C. (pt. IV) 95 at 110 and Ifeanyi V. The State (1996) 9-19 SCNJ, 18 at 27-28.
In arguing the Appellants issue two, the learned counsel drew our attention to the fact that the learned trial Judge had indeed agreed with the argument that the Appellant had not been properly identified by the prosecutions witnesses, but still went on to hold that there was no need for an identification parade. It was the view of the learned counsel that the trial Judge was wrong to so hold because of the earlier holding that there was no evidence before the Court to suggest that PW1 identified the Appellant from among other suspects at the police station (in respect of count three). It was argued that there was equally nothing on record to show that the PW2 and PW3 who were victims of the robbery had identified the Appellant from among other
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suspects as well in respect of counts 1, 2 and 4, and therefore the prosecution could not be said to have proved the guilt of the Appellant beyond reasonable doubt. The testimony of the PW2 contained at pages 281 to 282 of the record of appeal, which is to the effect that he recognized the Appellant at the police station, was not the a valid identification in the eyes of the law according to the learned counsel. He also argued that the PW2 under cross-examination had said that he identified the Appellant through the photograph shown to him at the Ikirun branch of Skye Bank, and urged us to hold that since all the three victims of the armed robbery had testified that they did not know the Appellant before the respective days of the robbery, it then became necessary for the police to conduct an identification parade; more so as the victims were with the armed robbers only for a very short period of time during the robbery incidence, which had occurred at night. In concluding his argument on this issue, learned Counsel submitted that it is trite law that where there was no identification parade, the Court will not make the accused liable for the offence charged,
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and therefore urged the Court to hold that an identification parade was necessary in this case and to resolve issue two in favour of the Appellant. Reliance was made to the cases of Abdullahi Vs. State (2005) ALL FWLR (pt. 263) 698 at 716, Nwaturuocha V. State (2011) 2-3 S.C. (pt. I) 111 at 132-133 and Alufohai V. State (2014) 12 S.C. (pt. I) 120 at 142-143, in aid of the argument of the learned counsel.
In arguing Appellants issue three, the learned counsel quoted count three of the charge and submitted that the wordings in the count leaves no doubt that the offence alleged therein was conspiracy to commit armed robbery and not the offence of armed robbery. He referred to page 277 of the record of appeal which shows the plea of the Appellant to the offence of conspiracy to commit the offence of armed robbery on that count. It was the contention of the learned Appellants counsel that the learned trial Judge had totally misplaced the nature of the offence in count two, having based his findings of guilt against the Appellant on the assumption that the Appellant was charged with the offence of armed robbery, rather than conspiracy, and the
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judgment of the trial Court as far as count two is concerned is vitiated having been based on the wrong offence charged. It was argued further that the learned trial judge did not see the offence the Appellant was charged with in count 2 thereby misapprending the case and so the decision reached upon such misapprehension would be liable to be set aside. Learned counsel referred to Adejugbe V. Ologunja (2004) 2 SC (pt. II) 44 at 64, Ovunwo & Anor. V. Woko & 2 Ors. (2011) 6-7 SC (pt. 1) 20 at 21 and Agu V. Nnadi (2002) 12 SCNJ 238 at 249 among others in support of his submissions and in urging the Court to resolve issue three in favour of the Appellant.
In arguing the Appellants issue four, the learned Appellants counsel submitted that the prosecution failed woefully to prove the offences alleged against the Appellant beyond reasonable doubt and therefore the trial Court was wrong to have convicted and sentenced the Appellant. It was argued that the prosecution was required to prove the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 6(a) and 1(2) of the Armed Robbery (Special Provisions) Act, with
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which the Appellant was charged beyond reasonable doubt. he referred to the decision of the Supreme Court in Obiakor Vs. State (2002) SCNJ 193 at 203 on what constitutes the offence of conspiracy, being an agreement of two or more persons to commit or cause to be done an illegal act. In the offence of conspiracy, the actual agreement alone constitutes the offence and it is seldom proved by direct evidence but by inference from other proved facts. It was argued that the prosecution in this case had failed to prove how, where and when the Appellant agreed with others to commit the offence of armed robbery. That there was no direct, cogent or circumstantial evidence before the trial Court which linked the Appellant to the offence of conspiracy to commit armed robbery upon which it could convict and sentence the Appellant for that offence. We were referred to the holding of the trial Court at page 476 of the record of appeal in which reference was made by the learned trial Judge to Exhibit G, which was stated to be one of the properties stolen from PW3, and which the trial Court noted that the Appellant and one Tunji (at large) used to further
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withdraw money from the bank account of PW3. The learned counsel drew the Courts attention to the fact that Exhibit G was a photograph while its negative was Exhibit G1, and wondered how a photograph could be used to withdraw money from an ATM machine. We were urged to hold that the learned trial Judge was wrong to have held that Exhibit G manifested the common intention between the Appellant and Tunji, as there was nothing on the record to show that the Appellants picture was on Exhibit G at the time it was shown to the Appellant at the police station. It was further contended that the Exhibit G relied upon by the trial Court to convict the Appellant for conspiracy should be discountenanced because it was not among the documents relied upon by the prosecution in its application to prefer a charge against the Appellant nor was it attached to the proof of evidence served on the Appellant before the trial and which violated the provisions of Section 36(6)(b) of the Constitution of Nigeria 1999 (as amended). It was further argued that Exhibit G being computer
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generated document, there was no proper foundation laid before it was admitted in evidence and this was in violation of Section 83 of the Evidence Act 2011. Though the Exhibit G was admitted in evidence without any objection because Appellants counsel had withdrawn his objection to its admissibility at the trial Court, but he submitted, on the authority of the decisions in Okonkwo V. Okonkwo (2014) NWLR (pt. 865) 87 at 128 to 129, Okele Vs. Fashawe (2006) 12 WRN 1 at 24 to 25 and Eze Vs. State (2015) ALL FWLR (pt. 811) 1394 at 1422, that the law is settled that admission of inadmissible evidence without objection does not operate as a bar against the opponent raising an objection to its admissibility on appeal. It was on this basis that the Appellant now submitted that Exhibit G was wrongly admitted in evidence and the trial Court ought not have relied on it to convict the Appellant of conspiracy.
It was further contended that the evidence of the Appellant under cross-examination had shown that the photograph shown to him by the police was only that of Tunji, which the Appellant had explained, while testifying in his
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defence (as shown at page 422 of the record of appeal) how he encountered Tunji. Learned counsel referred to and relied on the decisions in Oladejo Vs. State (1994) 6 NWLR (pt. 348) 1010 at 127, Okeke Vs. State (1999) 2 NWLR (pt. 589) 243 at 277 and Yakubu Vs. State (2014) ALL FWLR (pt. 732) 1680 at 1696 among others in support of his argument and submissions and in urging us to set aside the conviction of the Appellant for conspiracy.
On the offence of armed robbery, it was equally submitted that the prosecution did not make out a case against the Appellant and therefore, it was wrong for the learned trial Judge to have convicted and sentenced him for the offence. The learned counsel stated the ingredients of the offence of armed robbery, which the prosecution was required to prove, and submitted that there was no weapon tendered by the prosecution with which the said armed robbery was carried out. That the testimony of PW2 to the effect that a gun was pointed at her does not necessary mean that the gun was actually pointed at the victim. It was further argued that the prosecution also failed to tender the statements of the victim, the ATM
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picture that purportedly showed the Appellant or the exhibits recovered during the search by the police, and that the prosecution had failed to prove that the robbery was an armed robbery having failed to tender the weapon used or found in custody of the Appellant. It was contended that the failure to present the evidence mentioned above had raised doubt in the case of the prosecution, which should be resolved in favour of the Appellant. The learned counsel referred us to Okoh Vs. State (2014) ALL FWLR (pt. 736) 443 at 457 in support of his argument.
With regards to the statements of the Appellant admitted as Exhibits C and D, it was the position of the learned Appellants counsel that they were not confessional statements which could ground the conviction of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery as charged. This is because the robbery committed against the PW2 and PW3 were at Offa Kwara State on 26/10/2009 and 7/8/2009 respectively, but that at where in both Exhibits C and D did the Appellant admitted the commission of the offences on the stated
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dates. In fact, the Appellant had stated that he had quitted the gang since June 2009, which was before any of the dates of the robbery. The learned counsel relied on Milla Vs. State (1985) 3 NWLR (pt. II) 190 at 205, in urging us to discountenance Exhibits C and D in the consideration of this appeal because the evidence of car snatching at Ogbomoso, Ikirun/Oshogbo Road, Ilorin or Ibadan as stated in Exhibits C cannot by any stretch of imagination be taken as offences committed at Offa.
In conclusion, it was submitted that there are lots of irreconcilable and material contradictions in the case of the prosecution right from the charge itself to the testimonies of the witnesses. The instances of such contradiction include the name of the victim of the armed robbery which was stated in the charge as Ranti Afusat Adetunji while PW2 who was the allege victim of the robbery is Adebiyi Afusat Ranti. In the charge, the Appellant was alleged to have committed the offence with one other (at large), but in her oral evidence before the trial Court as the victim of the robbery, PW2 said four boys
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robbed and kidnapped her. Similarly the 2nd victim of the robbery who testified as PW3 had stated in his evidence contained at page 268 of the record of appeal, (as PW1), that he was robbed at around 8:30 p.m. but in his later evidence contained at page 284 he stated that the robbery took place at around 7:45p.m.
Another contradiction in the prosecutions case is in that PW5 in his evidence before the Court mentioned one Suraju as the complainant whose photograph showing his gunshot wound was admitted as Exhibit B, but the person in the photograph turned out to be PW1 Hakeem Olaiya and not PW3. It was submitted that the prosecution failed to reconcile all the contradictions in its case, and that the law is settled that in such circumstances, the Court should give the benefit of the doubt created by the contradiction to the accused person. The learned counsel referred to and relied on the decisions in the cases of Chukwu Vs. State (1996) 9-10 SCNJ 18 at 33 and Ndike Vs. The State (1994) 8 NWLR (pt. 36) 333, in support of his submissions.
It was further argued that the learned trial Judge did not consider the contradictions
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mentioned by the Appellant in the prosecutions case as material enough to be fatal to the prosecutions case against the Appellant, but we are now urged upon to consider the stated contradictions as material to the prosecutions case and to hold that the contradictions were material enough to be fatal to the prosecutions case.
The learned Appellants counsel further argued that the prosecution failed to call two police officers, whom it had listed as prosecution witnesses to be called at the trial. The listed witnesses were PC Adewumi Omoliki and Insp. Emmanuel Oguntunji both attached to Owode police station Offa. The learned counsel for the Appellant consider these witnesses as vital witnesses because they were the only police officers of Offa from where the arrest of the Appellant and the investigation of the case took place. He argued that the evidence of these officers would have shed more light on the issue of the photograph of the Appellant that was allegedly snapped at the ATM of Skye Bank Ikirun branch and to tender the said photograph. The staff/officers of the Skye Bank Ikirun branch were also not
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called to testify as to the exact time the money was withdrawn from the bank account of the Appellant. It was posited that the prosecutions failure to call these two police officers and the staff of Skye Bank, the boy who gave PW3 black trouser to wear, the woman that was beaten up by the robbers in the house of PW3 and host of other witnesses considered by the Appellant to be vital was fatal to their case. It was further pointed out by the learned counsel that the prosecution equally failed to tender the exhibits it had listed in its proof of evidence at the lower Court, and that this had further dealt a fatal blow on the prosecutions case against the Appellant. Learned counsel referred to and relied on the decisions in the cases of Onuoha V. State (1995) 3 NWLR (pt. 385) 591 at 599 and Nwomukoro V. State (1995) 1 NWLR (pt. 372) 432 at 444 in support of his submissions and argument. Conclusively, the learned counsel urged us to allow this appeal, to set aside the conviction and sentence of the Appellant and discharge and acquit him.
ARGUMENT OF THE RESPONDENT
The Respondents brief of argument contained 22 pages, and as stated
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earlier, the Respondent adopted the issues formulated and submitted by the Appellant for the determination of this appeal. On issue one regarding investigation of alibi raised by the Appellant, Mr. J. A. Mumuni, the learned DPP referred us to the judgment of the lower Court at pages 490 to 491 of the record of appeal, wherein the learned trial Judge held that there was no obligation on the police to investigate the whereabouts of the Appellant when there was overwhelming evidence against the Appellant that he participated in the commission of the offences charged. It was submitted that the trial Court was right in its findings because the Appellant was fixed to the scene of the crime by the evidence of the prosecution witnesses contained at pages 278 to 404 of the record of appeal. The learned DPP placed reliance on the case of Kareem Vs. The State (2017) ALL FWLR (pt. 917) 1718 at 1721, where it was held that, where there are eyewitnesses to the commission of a crime, the question of alibi does not arise. Moreover the Appellant had only stated in Exhibit C that on 26/10/2009 he was in his house at Ilesha and asked the police to confirm from his
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landlord, which the learned DPP submitted had fallen short of all the legal requirement of an alibi against the serious allegations of series of robberies labeled against him. The Appellant did not state where he was, with whom and what he was doing on the various days of the armed robberies. We were referred to the case ofNjovens & Ors. Vs. The State (1973) 5 S.C. 12 at 47, where the Supreme Court held that there is a flexible and verifiable way of disproving a statement of alibi of an accused person, by the prosecution adducing sufficient evidence fixing the accused person at the scene of the crime, at the material time, thereby logically and physically demolishing his alibi. Based on the argument, the learned DPP urged the Court to resolve issue one in favour of the Respondent.
On issue two, in which the Appellant complained about failure of the police to conduct an identification parade to identify and link him to the offences charged, the learned Respondents counsel submitted that an identification parade in the course of investigation of criminal offences depends on the nature and circumstances of the case under investigation.
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The learned counsel referred to and relied on the case of Adamu Vs. The State (1991) 4 NWLR (pt. 187) 530 at 538, where the Supreme Court held that an identification parade is not necessary where the victim of the crime or witness thereof promptly identifies the criminal without prodding. It was submitted on this authority that in this case, the prosecutions witnesses properly identified the Appellant along with his cohort. We were referred to the evidence of PW1 at pages 279 to 280 of the record of appeal which showed that the Appellant made an undertaking to return the robbed car on condition that his case should not be transferred to Ilorin for further investigation. The undertaking was also admitted in evidence as Exhibit A. It was further argued that even the Appellant admitted responsibility for the robbery when he stated in his evidence before the Court contained at pages 422 to 426, that he made the undertaking in Exhibit A on 2/11/2014. That the PW1 in her evidence said she saw the Appellant point gun at her and when he ordered her to enter the car and cover the light with her hand.
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In response to the argument of the Appellants learned counsel that the 20 minutes duration that the PW1 said she spent with the Appellant was too short an encounter for her to recognize the Appellant, the Respondents counsel submitted that 20 minutes encounter with a person was sufficient time to know and recognize the essential features of any human being more so when the PW1 said it was not dark when the incident happened.
It was further argued that the case of the Appellant does not fall under the situation envisaged by the Court in the case ofAbdullahi Vs. The State (2005) ALL FWLR (pt. 263) 716, which was relied upon and quoted extensively by the Appellant in his brief of argument. The learned DPP argued that the Appellant had confessed to the DCO Offa of withdrawing money from the bank account of PW3 using the stolen ATM card coupled with the photograph of the Appellant and his cohort at the ATM machine where they withdraw money belonging to the victim of the armed robbery. We were referred to the holding of the learned trial judge at pages 475 to 476, upon which the learned DPP submitted that the Appellant had adequately identified himself as such no further
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identification was necessary. The learned Counsel referred to the decision in the case of Usung Vs. The State (2009) ALL FWLR (pt.462) 1203 at 1237 to the effect that an identification parade may be dispensed with where there is sufficient evidence linking the accused person to the crime on the day of the incidence; and where the accused person by his confessional statement identified himself. In this case, it was the position of the Respondent that there was sufficient and cogent evidence linking the Appellant with the offences charged and as such an identification parade becomes a non-issue. The learned DPP urged us to disregard all the argument of the Appellants learned counsel and to resolve this issue in favour of the Respondent.
On issue three, regarding count two of the charge, the learned DPP submitted that the count two contained the offence of armed robbery contrary to Section 1(2) of the Armed Robbery (Special Provisions) Act CAP. R11 of LFN 2004, and not conspiracy as argued by the Appellant. It was posited by the learned counsel that the argument of the Appellant under this issue lacked substance in view of the fact that there is
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nothing on record to show that the Appellant was at any time misled by the charge or that the charge as framed led to any miscarriage of Justice. To support this position, the learned DPP quoted and relied on Section 206 of the Criminal Procedure Code and this Courts decision in Emmanuel Vs. FRN (2018) LPELR-44856 (CA) and urged upon the Court to resolve issue three in favour of the Respondent and to uphold the findings of the trial Court on this issue contained at page 494 of the record of appeal.
On issue four, the learned DPP while conceding that the prosecution has the burden of proving the offences the Appellant was charged with beyond reasonable doubt, however argued that proof beyond reasonable doubt cannot be interpreted to mean proof beyond every shadow of doubt. The learned counsel stated the ingredients of the offence of conspiracy and submitted that the offence is sustained by leading evidence from which the Court could deduce inference of certain criminal acts done in pursuance of an apparent criminal purpose. We were urged to agree with the findings of the learned trial Judge contained at page 476 of the record of appeal because it
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was in line with the evidence adduced before the Court.
In response to the contention of the Appellant that the prosecution had failed to prove the ingredients of the offence of armed robbery, the learned DPP stated the ingredients of this offence under Section 1(2) of the Act and submitted that the prosecution has established all those ingredients beyond reasonable doubt through the testimonies of PW1 and PW3, as shown by pages 281 to 285 and 480 to 481 of the record of appeal. The earlier argument of the Respondents counsel with regards to Exhibit G and G1s admissibility based on their relevance to the proceedings was also repeated in urging the Court to discountenance the belated argument of the Appellant on the admissibility of these exhibits.
On the extra-judicial statements of the Appellant admitted at the lower Court as Exhibits C and D, the learned DPP argued that these statements were not only confessional in nature but gave an insight into the manner of operation of the Appellant and his cohorts. It was further argued that these exhibits have given sufficient inference of the
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commission of the offences the Appellant was charged with. The learned DPP relied on the decision in Suberu Vs. The State (2010) 1 NWLR (pt. 1174) at 449 in support of his argument. In concluding the Respondents argument, the learned DPP referred us to this Courts decision in CPL Isah Ahmed Vs. The State (2011) 1 NWLR (pt. 1227) 89, where it had held that it is not every inaccuracy in the testimonies of the prosecutions witnesses that will render such testimonies unreliable, but only contradictions, which are substantial and fundamental to the main issue at the trial, will be fatal to the prosecutions case. Furthermore, what the Appellant had referred to as contradictions if any, did not affect the ingredients of the offences charged nor misled the Appellant in any way. As such, they are deemed inconsequential and the Court was urged to resolve issue 4 in favour of the Respondent.
The Appellants reply brief was filed on 1st March, 2019 as a reply on points of law to the Respondents brief of argument. On the issue of the Appellants alibi, it was submitted that the case of Kareem Vs. The State (supra) relied
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upon by the Respondent in its brief of argument cannot avail the Respondent having failed to investigate the alibi timeously raised by the Appellant. With regards to the argument of the Respondent that the Appellant failed to call his wife and children with whom he claimed to be on the day of the robbery, learned counsel for the Appellant submitted that the law does not place any burden of proof of his whereabouts on the Appellant, but that the prosecution has the burden of investigating and disproving the alibi raised by the Appellant.
In his reply to issue two, the learned Respondents counsel submitted that the authorities relied upon by the Respondent are not apposite because there is no evidence on record to show that the victims of the robbery knew the Appellant before the incidence. Reliance was placed on the case of Abdullahi V. State (2005) ALL FWLR (pt. 263) 698 at 716 where this Court held that an identification parade is necessary where the victim did not know the accused person before and their first contact was during the commission of the offence. It was further submitted that there is nothing on Exhibit A or in the
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evidence of the Appellant before the lower Court which shows that he agreed to produce the stolen vehicle to the owners. So also there is nothing on the record of appeal that shows that the Appellant confessed to have withdrawn money from the ATM of Skye Banks branch at Ikirin with the card of the PW3. It was further argued the there is no picture of the Appellant on the Exhibit G and G1 because the Appellant only saw Tunji on the photograph. The Court was therefore urged to discountenance the argument of the Respondent on issue two.
In reply to issue three, the learned Appellants counsel submitted that count 2 of the charge is a clear case of conspiracy to commit armed robbery and not armed robbery, and the issue of whether the Appellant was misled or not or whether the charge has led to any miscarriage of Justice does not arise. The issue is whether the count 2 as framed is unequivocally an allegation of armed robbery or conspiracy having regards to its contents. That since the Appellant never pleaded to the offence of armed robbery in count two, but to an allegation of conspiracy, he could not have been validly
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convicted of that offence. In these circumstances, Section 206 of the CPC relied upon by the Respondent is not apposite. The Court was urged to so hold.
In the Appellants reply to the Respondents argument on issue four, learned counsel submitted that the case of Awosika Vs. State (supra) relied upon by the Respondent is irrelevant to this case; the reason being that the prosecution failed to prove the offences alleged against the Appellant beyond reasonable doubt as required by law and therefore no burden was shifted on the Appellant to rebut the evidence of the prosecution. The Court was urged to allow the appeal and to discharge and acquit the Appellant.
RESOLUTION
In the determination of this appeal, I note that the four issues formulated are properly distilled from the seventeen grounds of appeal. The Respondent has also adopted the Appellants issue thereby agreeing that they are properly distilled from the grounds of appeal. I agree with both counsel and adopt the four issues formulated by the Appellant for the determination of this appeal.
ISSUE ONE
This issue was formulated in an either or
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manner, that is in two parts although it is basically a complaint of the failure to investigate the defence of alibi raised by the Appellant after his arrest. I will take the second part (i.e. the or part), which was the question whether the learned trial Judge was right to dismiss the defence of alibi raised by the Appellant and to hold that there was no need for the police to investigate it.
The position of the Appellant as vehemently argued by his counsel in his brief of argument was that the Appellant having raised the defence of alibi timeously, that is in his extra-judicial statement to the police after his arrest, the police were duty bound to consider and investigate it in order to confirm or disprove the defence. The Appellant argued that considering the fact that the Appellant was charged with the offences that carried penalty of death, any slight defence ought to be investigated, for which the police in this case failed to do. The Appellant contended that rather than uphold this argument, the learned trial Judge embarked on an unsolicited assistance to the prosecutions case by defending the police failure to
30
investigate the Appellants defence of alibi. Further that the learned trial Judge tacitly attempted to put the burden of proving the alibi on the Appellant.
The Respondent on the other hand argued that the prosecution had adduced sufficient evidence to fix the Appellant at the scene of the crime and so the question of alibi does not arise in this case and moreover, the Appellants statement that he was in his house at Ilesha on 26/10/2009 fell short of the legal requirement of the defence of alibi.
The logical starting point in resolving this issue is the exact statement made by the Appellant, which he claimed was the defence of alibi he raised after his arrest, after which I will then examine the decision of the trial Court regarding this claim to determine whether the decision was right or wrong.
The extra-judicial statements of the Appellant made to the police after his arrest are contained at pages 13 to 38 of the main record of appeal. In the first statement, pages 13 to 16, recorded on 23rd November 2009, the Appellant narrated how he and his gang members had been robbing cars and how they disposed of them by
31
selling to receivers. The statement recorded earlier, on 3rd November, 2009 is contained in pages 19 to 30 of the main record. In this statement, the Appellant narrated how he and members of his gang, which included one Kunle and Tunji used to carry out armed robbery of cars both on the road and at peoples houses. They also operated at students hostels where they stole laptop computers. It was in this statement at page 27 of the record that the Appellant stated thus:
On 26/10/09, I was in my house at Ilesha. You can confirm from my landlord at Ilesha. It was Tunji And Shayos group that robbed Surajuddeen Mustapha on 26/10/09.
Both learned counsel have relied on several decisions of this Court and the Supreme Court regarding the defence of alibi and the settled principle of law that where the defence of alibi has been properly and timeously raised, it must be investigated by the police. This principle of law is stated in all the cases cited and relied upon by the learned counsel in their respective briefs of argument. See Onyedikachi Osuagwu Vs. The state (supra) cited by the Appellant and Kareem Vs. State
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(supra) relied upon by the Respondent. However, the law does not allow an accused person to raise this defence at large or casually and it is expected that the prosecution must go ahead to investigate it in whatever form raised. The accused person in raising this defence is expected to give the particulars of his whereabouts, with whom he was at the exact time in issue and what he was doing. See Shehu Vs. State (2009) LPELR-3578 (CA) where this Court succinctly put the position of law regarding the defence of alibi, and held, per OMOLEYE, J.C.A. that:
“It is settled law that for the Appellant to benefit from the defence of alibi, it must be shown that he raised it timeously. In the case of Esangbedo Vs. The State (1989) 7 SCNJ p. 10 at p. 19, the Supreme Court held that, where an accused person stated that he was not at the scene of crime at the material time the offence was allegedly committed, this being a matter especially within his knowledge, the law requires that for his defence of alibi to succeed and in raising the doubt in his favour, an accused person ought to do certain things. He ought to give such details and particulars of his whereabouts so
33
that the Police can investigate. This is the evidential burden on him in his defence of alibi. Merely stating that he was at home on the day of the incident did not automatically entitle him to the defence of alibi. It is a settled principle of law that for a person to take advantage of this defence, he must give a detailed particularization of his whereabouts on the crucial day of the incident. Such will include not just the specific place(s) where he was, but additionally, the people in whose company he was and what, if any transpired at the said time and place(s). Although the onus is not on an accused person to prove the defence of “alibi”, it is his duty to raise the defence promptly and properly. The law is therefore that it is not enough for an accused to raise the defence of “alibi” casually, at large or as a last resort as done by the Appellant, in the instant case. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the “alibi”. If the accused said he was in a particular locality or with a particular person(s), he must give a clue
34
as to the specific place, time, the names and/or addresses of who to contact and the relevant period he was away from the scene of crime. For the Police who are saddled with the constitutional duty of investigation of crime among others would however not be expected to go on a wild goose chase for them to be seen to be discharging this duty
See also Okere Vs. IGP (2018) LPELR 44674 (CA), Peter Vs. State (1997) LPELR-2913 (SC) and Egwumi Vs. State (2013) LPELR-2009 (SC) among others.
In the light of the legal position of the defence of alibi, can the above quoted statement of the Appellant be considered to have adequately raised the defence of alibi, which must be investigated by the police. I do not think so. The Appellant simply said he was at home on the date of the robbery and asked the police to confirm from his landlord. But the police had other evidence that obviously contradicted the claim of the Appellant. It was in the light of the other evidence before the lower Court that it did not consider that the Appellants statement has adequately raised the defence of alibi either. As such, at page 475 of the record of appeal,
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the learned trial Judge held that:
PW3 told the Court he was robbed around 7:45 p.m. on 26/10/2009. The Court found the date printed on Exhibit G by Automated Teller Machine is 26/10/2009 and the time of the transaction also printed on the picture is at 21:45:45, that is, two hours after the robbery. The 1st accused was therefore economical with the truth when he said he got back to Ilesha from Ikirun between 8 p.m. and 9 p.m. on 26/10/2009. The evidence of PW3 that he was able to recognize the 1st accused person having earlier seen him in Exhibit G is believable.
The above finding of the learned trial Judge was based upon the analysis of the evidence before the Court. See particularly the evidence of PW1 at pages 268 to 270 wherein he stated that he was robbed of his Camry car on 26th October 2009 at about 8:30 p.m. at his house at Offa. The robbers stole his ATM card and forced him to give them his PIN number with which the sum of N28, 000 was withdrawn from his Skye bank account Ikirun branch at about 9:00 pm of the same night. The bank showed the photograph of the persons who did the withdrawal from the ATM to him and it was
36
tendered in evidence as Exhibits G and G1. He identified the Appellant as being among the persons who robbed him on the 26th October 2009. At the police station, the Appellant requested to be left alone with the PW1, after which the Appellant offered the PW1 a deal to return his car in exchange for the PW1 not making a case against him. PW1 asked the Appellant to put this proposition in writing, which he did. But PW1 then handed the written undertaking made by the Appellant to the police. That undertaking was in evidence before the Court.
Therefore the learned trial Judge did consider the claim of the Appellant that he was at home on the 26/10/2009 in the light of the overwhelming evidence of the prosecution against him; having rightly found that the evidence of the prosecution was stronger than the defence of alibi, the learned trial Judge was on a strong legal footing to have held that there was no need for any investigation of the so called defence of alibi raised by the Appellant. In the light of the above, I have not seen any evidence of an unsolicited assistance to the prosecutions case on the part
37
of the learned trial Judge with regards to the issue of alibi, and it was irresponsible of counsel to so suggest at page 8 of the Appellants brief of argument.
In fact one wonders what kind of investigation the Appellant was referring to specifically, since any evidence called by the prosecution, which fixes the Appellant at the scene of the crime as done in this case, was enough investigation regarding his claim of the defence of alibi. The Appellant admitted that the police were at Ilesha, yet he was sure that his whereabouts was not investigated. It is not clear how he could come to that conclusion. Upon all I have stated above, I have no hesitation in resolving Issue one against the Appellant.
ISSUE TWO
This issue raised the question whether an identification parade was necessary in linking the Appellant with the offences of conspiracy and armed robbery with which he was charged. The argument of the Appellant on this issue was that since none of the victims knew him prior to the commission of the crimes, an identification parade was necessary and that the failure to conduct one was fatal to the prosecutions case. Moreover, that
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because the trial Court had found that the Appellant was not properly identified with regard to the robbery against Hakeem Olaiya (PW3) on 21/8/09 in respect of count 3, and upon which he was discharged and acquitted, then the trial Court ought to have found the same lacuna in respect of the robberies against PW1 and PW2 with regards to the identity of the Appellant.
The Respondent on the other hand relied on the testimonies of PW1 and PW2 as well as the undertaking written by the Appellant at the Offa police station, Exhibit A to argue that there was no need for any identification parade because there was cogent evidence linking the Appellant to the offences on the day of the incidence.
The learned trial Judge agreed with the Respondent, and held at pages 489 to 490 of the record of appeal that:
I am satisfied with the identification of the 1st accused by PW2 and PW3. I am also convinced that Exhibit G has unequivocally linked the 1st accused to the crime committed against PW3. Where the victim of a crime was not confronted by the accused person for a very long time, where there is clear and uncontradicted eye witness
39
account and identification of the accused or he is linked to the offence committed by convincing and compelling evidence, like in the case at hand, identification parade is not necessary.
I have given proper consideration to the testimonies of all the prosecutions witnesses called at the trial as shown on the record of appeal. I find that it is correct that all the victims of the three robberies committed on 7/8/2009 against PW2; on 21st August, 2009 against PW3 and the robbery of 26/10/09 against PW1 identified the Appellant as among the robbers that robbed them of their respective cars. Not only that, the Appellant promised in writing (Exhibit A) to return the stolen cars of PW1 and PW3, which undertaking was turned over to the police. See the evidence of PW1 at pages 268 to 270, the evidence of PW2 contained at pages 270 to 272 and evidence of PW3 at pages 273 to 275 of the record of appeal.
The learned trial Judge was therefore right to hold that in the circumstances of this case the Appellant had been properly identified and there was no need for an identification parade. The law is trite in such a circumstance, where
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the accused person has been properly identified by the prosecutions witnesses, an identification parade was unnecessary. In other words, where the police has in their possession enough evidence identifying the accused, the need for a formal identification parade becomes unnecessary, because the identity of the accused was no longer in issue or in doubt. See Ufor Vs. State (2016) LPELR- 41026 (CA). In this case, the police had indeed enough identification of the Appellant through the victims and Exhibit G and G1. In fact by Exhibit A, the Appellants written undertaking to return the stolen cars of PW1 and PW3, which he admitted that he wrote, the Appellant has properly identified himself. See Aliyu Vs. State (supra) relied upon by the learned DPP, and Awosika Vs. State (2018) LPELR-44351 (SC), Osi Vs. State (2018) LPELR-44778 CA among others. I therefore agree with the learned trial Judge that there was no need for any identification parade in this case. I resolve issue two against the Appellant.
ISSUE THREE
In this issue, the complaint of the Appellant is that he pleaded to the offence of
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conspiracy in count two of the charge as shown at page 277 of the record of appeal, but that at the end of the trial he was convicted for the offences of armed robbery, instead of conspiracy to commit armed robbery charged and pleaded to. It was the contention of the Appellant that the learned trial Judge totally misplaced the nature of the offence the Appellant was charged with under count two.
The Respondents response to this issue is that count two contained all the essential elements of armed robbery and it was the section of armed robbery under which the Appellant was charged. The Respondent relied on the provisions of Section 206 of the Criminal Procedure Code to argue that the error in framing the count of the charge did not mislead the Appellant nor did it occasion any miscarriage of Justice.
The five counts charge upon which the Appellant was tried is contained at pages 3 to 4 of the record of appeal. Count 2, which the Appellant complained against under this issue is reproduced below:
That you Olumide Lanade with two others now at large on or about 26/10/2009 at Offa, Kwara State within the jurisdiction of this
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Honourable Court conspire together to commit an illegal act to wit; while armed with gun and other dangerous weapons do dispossessed one Alhaji Surajuddeen Mustapha of his Honda End of Discussion car valued at N2.2million, his wallet containing his ATM card and other documents, which included five pairs of shoes worth N150, 000.00 (One Hundred and Fifty Thousand Naira), Visa phone And 2 GSM Phones valued at N90, 000.00 (Ninety Thousand Naira) and you thereby committed an Offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, LFN 2004.
It is clear to me that the wordings of the above count two is conspiracy to commit the offence of armed robbery and armed robbery but the Section 1(2)(a) and (b) said to be contravened was for the offence of armed robbery. It is also correct that when the count was read to the Appellant, he pleaded not guilty to it as framed. There is no record showing that it was amended. The learned trial Judge held at page 494 of the record of proceedings that:
On the whole, I am satisfied from the believable evidence adduced before the Court that the prosecution has
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proved the guilt of the 1st accused in respect of counts one, two and four. The three offences punishable under Section 1(2)(a) and (b) and Section 6(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. I find the 1st accused guilty of the three offences, he is accordingly convicted.
The counts 1 and 4 under which the Appellant was convicted were for the offences of conspiracy to commit armed robbery against PW1 (Alhaji Surajudeen Mustapha) and count 4 was for offence of armed robbery against PW2 (Ranti Afusat Adetunji). It is an obvious error on the part of the prosecution, in framing count 2. Instead of framing count two for armed robbery, because count one is for conspiracy to commit the armed robbery, the offence of conspiracy was repeated in count two. But is this error sufficient to warrant our intervention to interfere with the above findings of the learned trial Judge in this appeal.
The Appellant, in urging us to interfere with the above findings of the lower Court, had referred to decided cases in support of this argument in suport this issue. However none of those cases relied
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upon at pages 16 to 17 of the Appellants brief of argument was a criminal case. They were all civil causes and matters in which the trial Court did not make pronouncement on the issues in contention. But this case of the Appellant was a criminal trial governed by the Criminal Procedure Code Law, CAP. C23 Laws of Kwara State 2007. Indeed the Respondent had referred to and relied on Section 206 of that law in arguing that the error in the framing of the count two did not mislead the Appellant nor occasioned any miscarriage of Justice. Section 206 of the CPCL provides as follows:
No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned miscarriage of Justice.
The error as noted earlier was in stating the particulars of armed robbery and conspiracy in count two. By virtue of the above provisions no such error should be regarded as material unless the accused was in fact misled one way or
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the other by the error. Throughout the trial of the Appellant, the witnesses testified regarding the offence of armed robbery, which they said the Appellant and some other persons were involved in. See the evidence of PW1, PW2 and PW3 already analyzed supra in my consideration of issues 1 and 2. Even from the testimony of the Appellant as DW1, the Appellant while referring to the offences in counts 1 and 2 said he did not know anything about those offences because on the 26/10/09 when he was alleged to have committed the offences he was at Ilesha. I believe strongly that the Appellant was not misled in those counts one and two. He knew from the testimonies of all the witnesses that he was being charged with the offence of conspiracy to commit the offences of armed robbery and armed robbery against PW1.
In the case of Ibrahim Vs. State (2018) 1 NWLR (pt. 1600) 279 at 319 to 320, the Supreme Court, per Bage JSC, held that:
The Law is grounded on the fact that once a person is accused of a criminal offence, he must be charged to Court. The most important thing about the charge in any criminal case is that it must tell the accused person enough,
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so that he may know the case alleged against him and prepare his defence. The emphasis is not whether or not there were defects, errors or omissions in the charge, but on whether those defects, errors or omissions could and in fact misled the defence, a defect which does not prejudice the defence is no ground for quashing a charge.
See also Ikpa Vs. State (2018) 4 NWLR (pt. 1609) 175 at 237, (per Odili, J.S.C.), where the Apex Court followed its earlier decision in the case of Ijeoma V. Queen (1962) 2 SCNLR 157 held that even where the prosecution failed to put down all the necessary requirements of a charge, but it was evident that the Appellant was not misled, the trial would not be invalidated.
In this case, it is my view that there was enough evidence before the trial Court to sustain the offences of conspiracy to commit armed robbery and armed robbery in counts one and two regardless of the inelegant manner in which the count was framed. The law is settled that even without count two, the Appellant could still be convicted of the offences of both armed robbery and conspiracy to commit armed robbery contrary to Sections 1(2)(a) and (b) and
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6(a) of the Armed Robbery Act upon the evidence that was before the trial Court. Consequently, I resolve issue three against the Appellant.
ISSUE FOUR
In this issue, the Appellant raised the question whether the prosecution had established the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt as required by law, to warrant or support the conviction and sentence of the Appellant by the lower Court. The basis of the complaint of the Appellant on this issue is his perceived contradiction in the evidence called by the prosecution at the trial, which the Appellant contended was material enough to be fatal to its case against the Appellant.
I have no doubt that the law is settled that in criminal trials, the onus or burden of proving the guilt of the accused person of the offences charged is always on the prosecution and that burden never shift. See Section 135 of the Evidence Act 2011. It must also be noted that Sub-section (3) of Section 135 of the Evidence Act does not shift the burden of proof on the accused person. That sub-section can only be activated after the prosecution has
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discharged the burden placed on it, then the accused person may now show doubt which may exist in the case of the prosecution and which if found to be true, must be resolved in favour of the accused person. It is this doubt that the Appellant seeks to show under this issue.
The Appellant was charged with the offences of conspiracy to commit the offence of armed robbery and armed robbery. On the offence of conspiracy, the Appellants learned counsel had argued that there was no evidence before the trial Court showing that the Appellant had agreed with others to commit the offence of armed robbery. The Appellants learned counsel hinged his submission on this issue to the trial Courts reliance on Exhibit G to infer the offence of conspiracy. The learned Appellants counsel quoted the concluding part of the trial Courts holding at page 476 of the record of appeal, (see pages 21 to 22, paragraph 8.9 of the Appellants brief of argument), while omitting the learned trial Judges background analysis of the statement of the Appellant (Exhibit C) at pages 469 to 475 upon which the learned
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trial Judge inferred the offence of conspiracy and reached the conclusion quoted by the Appellants Counsel. Thus it is clear to me that the basis for the trial Courts inference that the Appellant had committed the offence of conspiracy to commit armed robbery was stated at page 475 of the record thus:
PW3 said he was robbed around 7:45 p.m. on 26/10/2009. The Court found the date printed on Exhibit G by Automated Teller Machine is 26/10/2009 and the time of the transaction also printed on the picture is 21:45:45, that is, two hours after the robbery. The 1st accused was therefore economical with the truth when he said he got back to Ilesha from Ikirun between 8 p.m. and 9p.m. The evidence of PW3 that he was able to recognize the 1st accused at Offa police station having earlier seen him in Exhibit G is believable.
It is also clear from the above finding of the learned trial Judge that Exhibit G is the photograph of the Appellant with Tunji which was shown to the PW3 when he went to the bank to find out the identity of the robbers who stole his ATM card and used it to make withdrawals from his bank account on
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the night he was robbed. So when the learned trial Judge stated at page 476 that; In my considered view, the 1st accused and Tunji (at large) went with Exhibit G to withdraw money from the Automated Teller Machine there is no doubt in my mind that the learned trial Judge was referring to the ATM card of the PW3 which was forcefully stolen from him and he was also forced to give the robbers his PIN number without which the money could not have been withdrawn from his account.
In the circumstance, the argument of the Appellant at counsel at paragraph 9.0 of the Appellants brief that; A perusal of the record will unfortunately show that there is nothing on record to show the Exhibit G was ever used to withdraw any money from any Automated Teller Machine was not only misleading but indeed a manipulation of the record of appeal to mislead us. The learned trial Judges stating that Exhibit G was used to withdraw money from the ATM was nothing more than an inconsequential slip. The learned trial judge found as a fact that the photograph of the Appellant with Tunji was on Exhibit G and inferred
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rightly that the two conspired and robbed PW3 of his car and ATM card.
It was also argued that there was no proper foundation laid for the admission of the ATM photograph admitted as Exhibit G and it was therefore inadmissible in evidence, not withstanding the fact that the Appellant did not object to its admissibility in evidence when the prosecution sought to tender it before the trial Court. However, at pages 473 to 474 where the learned trial Judge analyzed the statement of the Appellant (Exhibit C), wherein the Appellant stated inter alia that, At the station, he (PW3) identified me but I denied that I wasnt the person in the picture from ATM machine that myself and Tunji was (sic) identified. That very day I went with Tunji to the Bank was the day they robbed the car. I was at Tunjis back at the ATMs machine.
Having explained that he was in Exhibit G which obviously was shown to him at the police station, and indeed tendered through him having identified himself and Tunji therein, then subsequently tendered through him at the trial Court as the photo
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shown to him, I think that proper foundation had been laid and the trial Court rightly admitted the photograph in evidence and relied on it in its decision. The objection raised to its admissibility amount to an afterthought on the part of the Appellant, having admitted being with Tunji at the ATM two hours after the ATM card was stolen from the PW3, the learned trial Judge was right to have inferred from this evidence and others that the Appellant conspired with Tunji to rob PW3 and indeed robbed PW3 of his car and ATM card.
It was also argued by the learned counsel of the Appellant that there were no contradictions in the evidence of PW2, when she said that three men robbed and kidnapped her at gunpoint, and she was able to identify the Appellant as the person who pointed the gun at her; but admitted under cross-examination that the police did not recover anything from their search of the house of the Appellant. Learned counsel argued that the evidence that a gun was pointed at PW2 did not mean that the gun was actually pointed at her because there was no weapon found with the Appellant and tendered before the lower Court at the trial. But after the
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analysis of the evidence of PW2, the learned trial Judge after held at page 481 of the record of appeal that:
From the demeanors of PW2 in the witness box, I am convinced of the truth in her evidence. She was calm and unshaken in her evidence in chief and even in cross-examination. The witness was not cross-examined on her evidence that the robbery incident took place before seven Oclock in the evening of 07/08/2009 the unchallenged evidence of PW2 convinced me that she had close contact with the armed robbers which included the 1st accused person.
It was indeed the duty of the learned trial Judge to observe the demeanor of the witnesses as they testified before him, analyzed their evidence in chief and under cross-examination and to arrive at conclusion, as done in this case. See Mohammed Vs. State (2010) LPELR-9019 (CA) and Senu V. State (2016) LPELR-41129 (CA). It is for this reason that I cannot fault the above findings of the learned trial Judge. In any event, I have not found any contradiction in the testimony of the PW2 either and so the argument of the learned counsel is baseless.
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The learned Appellants counsel had also argued that failure of the prosecution to call certain witnesses at the trial and to tender statements of the victims as well as tender the weapons used in the armed robbery before the trial Court amounted to withholding evidence unfavourable to the prosecutions case. The learned Appellants counsel had argued this same contention at the trial Court and the learned trial Judge at pages 492 held rightly in my view, that:
There is no principle of law requiring the prosecution to tender weapons of an alleged robbery before the guilt of an accused person is established; Ismaila Vs. State (supra). All that is expected of the prosecution is to establish compelling evidence that the accused person committed the offence. I am satisfied with the evidence of PW2 and PW3 that those who robbed them of their properties were armed with guns, offensive weapons.
On the submission of counsel to the 1st accused that the prosecution has suppressed evidence, what the law says is that it is not opened to the defence to tell the prosecution who to field as a witness in establishing its case. The refusal of the prosecution not to
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call witnesses or produce in evidence items referred to by the counsel of the 1st accused has not created any doubt in my mind on the case of the prosecution against the 1st accused in counts one, two and four.
Upon all the evidence that was before the learned trial Judge as can be seen from the record of appeal and which I have given due consideration in my determination of issues 1, 2 and 3 as well as under this issue, the above quoted findings was on strong legal ground and in accordance with the evidence called by the prosecution. I have not seen any reason to interfere with the above holding of the lower Court. There was no material contradiction in the evidence of the prosecution witnesses at the trial, which could be resolved in favour of the Appellant. The findings of the learned trial Judge in this case, which is to the effect that the prosecution had proved the offences of conspiracy and armed robbery against the Appellant beyond reasonable doubt cannot be faulted.
In the final analysis, I resolve issue four against the Appellant and it is so resolved against him. In conclusion, having resolved the four issues against the
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Appellant, this appeal totally failed and it is hereby dismissed by me. The judgment of the High Court of Kwara State, sitting at Ilorin in Charge No: KWS/56C/2011, delivered on 31st May, 2017 by Hon. Justice I. A. Yusuf is hereby affirmed by me.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having concurred with the reasoning postulated in the judgment just delivered by my learned brother, Aliyu, JCA, I too hereby find the instant appeal unmeritorious and accordingly dismiss same.
Accordingly, the judgment delivered by the High Court of Kwara State on may 31, 2017 in suit No. Kws/56c/2011 is hereby affirmed by me.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the lead judgment of my learned brother Balkisu Bello Aliyu JCA in draft.
Having equally studied the submissions of learned counsel and perused the record, I find myself in agreement with the lead judgment to the conclusion that the appeal lacks merit and therefore deserving of a dismissal.
For the reasoning and conclusions arrived at in the lead judgment, I also dismiss this appeal thus affirming the judgment of I. A.
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Yusuf J., in charge No. KWS/56C/2011 delivered on the 31st May, 2017.
I also affirm the conviction and the sentence imposed.
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Appearances:
Dr. D. A. Ariyosu, Esq. with him, Halima Jimada, Esq.For Appellant(s)
J. A. Mumini, Esq. (D.P.P. Ministry of Justice, Kwara State) with him, Abdulmumeen Busari, Esq. (S.S.C.)For Respondent(s)
>
Appearances
Dr. D. A. Ariyosu, Esq. with him, Halima Jimada, Esq.For Appellant
AND
J. A. Mumini, Esq. (D.P.P. Ministry of Justice, Kwara State) with him, Abdulmumeen Busari, Esq. (S.S.C.)For Respondent
