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PATRICK IKEMSON & ORS VS THE STATE -1989

PATRICK IKEMSON & ORS VS THE STATE

(1988) LCN/2399(SC)

In the Supreme Court of Nigeria

Friday, June 9, 1989


Case Number: SC.196/1987

 

JUSTICES:

NNAMANI JUSTICE, SUPREME COURT

KARIBI-WHYTE JUSTICE, SUPREME COURT

OPUTA JUSTICE, SUPREME COURT

BELGORE JUSTICE, SUPREME COURT

NNAEMEKA-AGU JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

PATRICK IKEMSONANTHONY ODEY (ALIAS FEDELIX)IKECHUKWU UZOCHUKWU

AND

RESPONDENTS

THE STATE

RATIO

THE DEFENCE OF ALIBI

Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of the crime when the crime was being committed; or to rebut the alibi if it was false. Adio v. The State (1986) 3 N.W.L.R. (Pt.31) 714; Onafowokan v. The State (1987) 3 N.W.L.R. (Pt.61) 538. It is however, not enough for the accused just to say he was not at the scene, he must give sufficient particulars as to his whereabouts for the prosecution to investigate. Yanor v. The State (1965) 1 All N.L.R. 193; Okosi v. The State (1989) 1 N.W.L.R. (Pt. 100) 642. It is a serious matter for a person to be charged for an offence he has not committed the more so if the person being charged was somewhere away from the scene of the crime now in issue. It is for this simple reason that an accused in such predicament should and is expected to at the earliest opportunity protest his innocence by intimating the police who are interrogating him of his whereabouts. To make statements voluntarily admitting presence at locus delicti and to turn round when giving evidence in Court and raise an alibi pre-supposes untruthfulness on the part of the accused person. PER BELGORE, J.S.C.

WHETHER OR NOT A RETRACTED CONFESSIONAL STATEMENT IS ADMISSIBLE IN COURT

It is settled law that a voluntary confession which is admissible against an accused person, does not become inadmissible merely because the accused person who made it has retracted. – See Ikpasa v. The State (1981) 9 S.C.7. An accused person can be convicted on his confessional statement, alone. He may also be convicted where the confession is consistent with other ascertained facts which had been proved. – See Ntaha v. The State (1972) 4 S.C.1. Now, a confession is an admission made at any time by a person charged with a crime stating or suggesting that he committed the crime. Saidu v. The State (1982) 4 S.C.41. PER KARABI-WHYTE, J.S.C.

BELGORE, J.S.C (Delivering the Leading Judgment): On the 9th of December, 1982, one Emmanuel Abaraoha, a cashier with the National Trucks Manufacturers Ltd., Kano, was returning to the company’s factory from various banks where he collected the total sum of N10.507.00 on behalf of the company. He was sitting at the back seat of a car, of FIAT make driven by Sani Abdullahi. Emmanuel Abaraoha and Sani Abaullahi were the P.W.1 and P.W.2 respectively at the trial Court. The vehicle was negotiating a ramp just at the junction to the factory, when the first accused ordered the vehicle to stop and drew out a gun. In no time he shot at P.W.1 injuring him at the back of the shoulder. In the meantime, the P. W.2 was also attacked and shot at both thighs; the shooting could be by first appellant or by the second accused at the trial, Samuel Nwogu (alias G.O.C.) who was discharged at the Court of Appeal. By the time Patrick Ikemson (1st appellant) accosted the P.W.1, the path of the car had been blocked with a motor cycle riden by two of the attackers, Anthony Odeh (2nd appellant) and Ikechukwu Uzochukwu (3rd appellant). The P.W.1 and P.W.2 were dragged out of the car and the robbers made away with it, leaving their motor cycle at the scene. The P.W.1 must have passed out by the time the robbers made their escape from the scene because he came round only at the hospital.
Meanwhile, a prompt report of the armed brigandage had got to the Police Post at Zaria Road and a chase was immediately set in motion. A few hundred meters away at the junction of the road leading to Maiduguri, the vehicle snatched was sited. About four persons were inside and three of them got out of the car leaving Ikechukwu Uzochukwu (3rd appellant) inside. Seeing the policemen, he also got out of the car and took to his heels. He was pursued and finally apprehended. The whole incident took place in broad daylight. As a result of the voluntary statement by this 3rd appellant, the police arrested the first appellant at his house. Later the second appellant was also arrested. The P.W.1 was sure he was shot at by the first appellant because he could vividly remember him by his complexion and beard. The 3rd appellant was arrested after he abandoned the snatched car and attempted to escape. The P.W.2 could recognise the second appellant as one of the two robbers that blocked the path of the car with a motor cycle. The four accused were found guilty at the High Court, convicted and sentenced to death. They appealed to the Court of Appeal where the 2nd accused, Samuel Nwogu (alias G.O.C.) was discharged and conviction and sentence passed on the three appellants now before us were affirmed.
The appellants raised some issues for determination based on their grounds of appeal and they could be summarised as follows:
1. Was the identification of the appellants in accordance with the law
2. Because there were contradictions in the evidence of prosecution witnesses, was the Court right in convicting the appellants on such evidence
3. Was the discharge of Samuel Nwogu (alias G.O.C.) by the Court of Appeal not sufficient ground for the discharge of the present appellants
4. Because the prosecution never called witnesses, could this Court not exercise its powers under S.26(1) Supreme Court Act
The three appellants filed identical grounds, on general ground of appeal and on the contradictions of the evidence of the prosecution witnesses.
I will deal first with the alleged contradictions. The onus always in a criminal offence is for the prosecution to prove beyond reasonable doubt the guilt of the accused and failure so to do, will automatically lead to the discharge of the accused person. Onubogu v. The State (1974) 9 S.C.1; Stephen v. The State (1986) 5 N.W.L.R. (Pt.46) 918. If there are contradictions in the evidence of the prosecution, and the contradictions go materially to the charge, doubt will be created and benefit of it must be given the accused person, in which case he will be discharged. The question in the instant case is whether there was a robbery. If there was one, the next question is whether any of the appellants participated in the robbery. If they participated, that is enough, for it does not matter what each one did in furtherance of the commission of the crime. The mere fact of common object to commit armed robbery and manifesting at the scene of crime to execute that object in law rendered all the appellants guilty of the offence of armed robbery. The P.W.1 was certain that it was the first appellant that ordered the car to stop and fired the gun that injured him. The P.W.2 was certain he saw the 2nd and 3rd appellants on a motor cycle used by them to obstruct his path and he was shot in the thighs by the 2nd accused person who got discharged at the trial. There was conflict in the evidence as to who fired the shots that injured the P.W.2; but there was clear evidence that the three appellants were at the scene of the crime in furtherance of their common object. The material evidence is that they were present; it does not matter if the victims could not vividly remember the part played by each accused person. The 3rd appellant was the only one that could not get away and he was seen getting out of the vehicle snatched at the scene of the crime a few minutes after the crime and a few yards from the scene of crime. He was also identified by the P.W.2 as one of the two persons on the motor cycle blocking the path of the car. The P.W.1 was certain it was the first appellant that fired the shot that injured him; he was also sure that the 2nd accused (discharged at the Court of Appeal), shot at the P.W.2. There is hardly any contradiction. The accused persons were convicted not for merely firing gun shots at their victims, but mainly for the offence of armed robbery. All those who participated in the robbery are guilty whether they fired guns, or blocked the road with motor cycle or drove away from the scene of crime, the motor vehicle snatched.
The accused persons also raised alibi; that they never committed the offence they were charged with, because they were somewhere else when the offence was being committed. Once alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi to find out if it is true the accused was not at the scene of the crime when the crime was being committed; or to rebut the alibi if it was false. Adio v. The State (1986) 3 N.W.L.R. (Pt.31) 714; Onafowokan v. The State (1987) 3 N.W.L.R. (Pt.61) 538. It is however, not enough for the accused just to say he was not at the scene, he must give sufficient particulars as to his whereabouts for the prosecution to investigate. Yanor v. The State (1965) 1 All N.L.R. 193; Okosi v. The State (1989) 1 N.W.L.R. (Pt. 100) 642. It is a serious matter for a person to be charged for an offence he has not committed the more so if the person being charged was somewhere away from the scene of the crime now in issue. It is for this simple reason that an accused in such predicament should and is expected to at the earliest opportunity protest his innocence by intimating the police who are interrogating him of his whereabouts. To make statements voluntarily admitting presence at locus delicti and to turn round when giving evidence in Court and raise an alibi pre-supposes untruthfulness on the part of the accused person. In such a case, the police have not been given the opportunity to investigate the alibi. The first appellant never indicated he had an alibi except when he gave evidence in Court and all he said was that he was at the Area Court, Gwagwarwa, where he stood surety for somebody but that he could not remember the name of the person he stood surety for. This to my mind was of no help and there was no burden on the police to investigate. Gachi v. The State (1965) N.M.L.R. 333. However incredible an alibi, it should not be disregarded unless there is overwhelming evidence against it, e.g. having regard to the failure of the accused to supply particulars of his whereabouts. Nwosisi v. The State (1976) 6 S.C. 109.
The other matter raised is as to the confessions of the appellants based on the voluntary statements, made by them. The police officer Zakaria Kutse, took the statement of the first appellant, Patrick Ikemson after he cautioned him in line with the Criminal Procedure Code (Statement to Police Officers) Rules, Cap. 30 Laws of Northern Nigeria 1963 (applicable to Kano State). When it was tendered there was no objection and it was admitted as Exhibit 4 and the statement inter alia reads as follows:
“They told me that they are going to Fiat Company along Zaria Road Kana for the operation. Sunday then told them the rest to enter taxi and go and wait for them. Sunday then carry Raphael on the machine 195 (Honda),” (italics mine)
Further he said:
“At 12.30 hours I went to Fiat Company again with Jonathan and met all of them, Sunday and Raphael were on the machine, Sunday told me that they have not yet come……I saw Fedelis driving the car one Fiat 131 white in colour. Inside the fiat car I saw Sunday, Fedelis, Raphael, Ike and Monday……..Fedelis then told me that the Fiat car which they robbed from a staff of the Fiat Company broke down ………Suspects named above were carried by me in my car I saw Sunday carrying……..cloth containing gun they used for the operation”,
Similarly, Ikechukwu Uzochukwu made a voluntary statement admitted as Exhibit 5. It was only in the witness box that these statements were being retracted by the accused persons. Once a statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement. It is a different matter from a statement objected to ab initio during trial where voluntariness is challenged; in such a case there will be trial within trial to decide its voluntariness, similarly, this is a different matter from where the accused admits at the time a statement is sought to be tendered that though he signed the statement, he did so not voluntarily but under some undue influence or duress, in which case the Court would weigh the credibility to be all ached to such statement. In the instant case, there was hardly any objection to the statements and the Court of Appeal rightly rejected attack on the statements.
The unfortunate feature of this case is the discharge of the 2nd accused, Samuel Nwogu (alias G.O.C.), whose role in the robbery is so clear from eye witnesses’ accounts, i.e. P.W.1 and P.W.2. The State never cross-appealed. Similarly, the manner where further investigation seemed to have been stopped in its track in a case that could lead to further disclosures is regrettable. One Sunday, whose name kept on recurring and alleged to be once in the Mobile Police Force, sank in a maze of non-charlance, just as the sub-machine gun used was not further investigated.
This appeal, for the reasons advanced in the preceding paragraphs above, has no merit and I hereby dismiss it and affirm the decision of the Court of Appeal, which upheld the conviction and sentence passed by the trial court on the appellants.

NNAMANI, J.S.C., I had before now read in draft the judgment read by my learned brother, Belgore, J.S.C. I entirely agree with his reasoning and conclusions.
The facts of this case were so conclusive that I see no ground on which the judgment of the learned trial judge, which was confirmed by the Court of Appeal could be faulted. This was a brazen day-light robbery and the victims of it. P.W.1 and P.W.2 were positive in their account of the robbery and those who took part in it.
The three areas in which this judgment was attacked were:
(1) that the 2nd accused having been discharged, the other accused persons ought to have been equally discharged. All that one can say is that the 2nd accused person must count himself lucky that the State did not appeal against the decision of the Court of Appeal to discharge him allegedly on the so-called inconsistency between the testimonies of P.W.1 and P.W.2. The issue appears to have centred on who shot the P.W.2; while P.W.1 said it was 1st accused, P.W.2 said it was 2nd accused. I would not have considered this a material contradiction. These discrepancies are to be expected in an account by two persons of a traumatic event as an armed robbery. The fact is both P.W.1 and P.W.2 received gun shot wounds, P.W.2 on his thigh. Both 1st and 2nd accused were shown to have been at the scene of the robbery, the 1st accused was the person who had the gun, while the 2nd and 3rd accused were on the motor cycle with which the robbed vehicle was blocked.
(ii) It was contended that the confessional statements of the appellants were not voluntarily made. This was a most misconceived complaint. Each statement was tendered in evidence at the trial without objection by counsel representing the appellants. It was at the point of tendering the statement that the question of voluntariness would have been tested.
(iii) It was also contended that some of the appellants, particularly the first, had a defence of alibi. Here again this defence was misconceived. Such a defence could have been raised at the earliest opportunity. The prosecution if given sufficient particulars would have been obliged to investigate the alibi. The trial Judge would then weigh such evidence of alibi against the evidence proferred by the prosecution. Any doubt in his mind would have enured to the benefit of the accused person. Instead, in the instant case the evidence of the so-called alibi was given in the witness box at the trial. Besides, particularly in the case of the 1st appellant, the particulars were so vague – he did not even know the name of the person he allegedly went on the day of the incident to bail
One significant aspect of this case that must be constantly kept in view is that the process of catching the appellants started with the arrest of the 3rd appellant. He was the person seen by P.W.3 driving the robbed vehicle. On seeing the Police, he took to his heels. He was chased by Police and caught. He gave details that led to the arrest of the other appellants. Indeed one of those appellants mentioned was 1st appellant. On searching 1st appellant’s house, the Police recovered one of the mirrors of the motor cycle used in the robbery from his vehicle.
In all these circumstances, this appeal lacks merit. For these reasons and the more detailed reasons in the lead judgment, I also dismiss it.

KARIBI-WHYTE, J.S.C.: This is an appeal by the three appellants against the dismissal of their appeal in the Court of Appeal Division, Kaduna on the 18th September, 1986. I have read the judgment of my learned brother, Belgore, J.S.C. I agree that the appellants’ appeal should be dismissed.
Appellants were among five persons arraigned before the Kano High Court on charge of conspiracy to commit robbery with firearms, punishable under section 3A(b) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by Act No. 48 of 1971, and committing robbery with firearms, punishable under section 1(2)(b) of the Act No. 47 of 1970 as amended by Act No. 8 of 1974.
The 1st accused having escaped from custody, proceedings against him was stayed. The remaining four accused persons were prosecuted. The learned trial Judge convicted all of them on all the heads of charges and imposed sentences on them accordingly. All the four accused persons appealed to the Court of Appeal. The appeal of the second accused who was the 1st appellant was allowed. He was accordingly acquitted and discharged. The appeals of the other appellants were dismissed. Their conviction and sentences were affirmed. Each of the appellants appealed against the judgment of the Court of Appeal, filing identical grounds of appeal.
Counsel to the appellants, Mr. Bankole Aluko, sought and was granted leave of this Court to amend the original notice of appeal of the appellants and to file amended grounds of appeal. Eight grounds of appeal were now filed and are relied upon. The substance of the grounds of appeal range from questions of identification of the appellants, contradictions and inconsistencies on material issues in the evidence of the prosecution witnesses, failure to call all material witnesses, to resolve conflicts, relying on extra-judicial statements made by the appellants, to affirming the conviction of the appellants after allowing the appeal of their co-accused.
Counsel to the appellants has formulated ten issues for determination as arising from the grounds of appeal. Counsel to the respondents adopting the same pattern has formulated one issue less. Both counsel have not appreciated the fact that the issues for determination must necessarily arise from the grounds of appeal filed, and could not have an independent existence outside the grounds relied upon. It is more consistent with the rules to formulate an issue to govern more than one ground of appeal, rather than a ground of appeal being split into more than one issue for determination.
I have had an occasion to correct the misunderstanding in counsel equating grounds of appeal with issues for determination. Obviously if the two were interchangeable, then one of them would be sufficient for the purposes of the appeal. It will in such a case be unnecessary to require the formulation of issues for determination after stating the grounds of appeal. Rules of practice are intended to bring both precision and clarity into the judicial process. They are not intended for repetition or obfuscation. In Oniah v. Onyia (1989) 1 N.W.L.R. (Pt.99) 514 at 527, where counsel had adopted the same practice in the formulation of issues for determination as here, I said:
“We have on several occasions in appeals coming before this court pointed out that counsel should exercise more diligence in formulating the issues. It seems to me necessary to point out again that the issues to be determined are not the same as the grounds of appeal filed. Whereas the grounds of appeal filed accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal for the determination of the appeal.”
I have summarised the grounds of error complained of in the grounds of appeal. For the sake of clarity, I set out hereunder the issues for determination formulated by Counsel for the appellants-
“(i) Was there any Identification Evidence, or alternatively any sufficient Identification evidence of the appellants of the character prescribed by law to ground the confirmation by the Court of Appeal of their conviction and sentence
(ii) Is it not apparent from the record of proceedings that the vital Prosecution witnesses contradicted themselves (and failed to offer any explanations for such conflict) on points of sufficient materiality to the Prosecution case
(iii) Was it not the duty of the Court of Appeal, (and now of this Court) to quash any conviction and sentence based on such unreliable and unsafe Prosecution evidence
(iv) Does the fact that one SAMUEL NWOGU (alias G.O.C.), who was discharged and acquitted by the Court of Appeal, not now make (in the circumstances shown on record) an Order of this Honourable Court discharging and acquitting these 3 appellants inescapable
(v) Should this Honourable Court hold that the making of an Order of discharge and acquittal in the circumstances identified in 2(iv) above represents one example of the exercise of the Court’s statutory jurisdiction provided under S.26(i), the Supreme Court Act 1960
(vi) Is the failure by the Prosecution to call all material witnesses available to resolve the fundamental contradictions in the Prosecution evidence not fatal to the Prosecution case
(vii) Isn’t the judgment of the Court of Appeal, in so far as it is predicated on Exhibits 4, 5 and 7 (the appellants Extra Judicial Statements to the Police) unsound
(viii) Do the circumstances disclosed by the record not entitle all the appellants to be discharged by this Honourable Court on the counts of conspiracy charged
(ix) Should the confirmation of the conviction of the 2nd and 3rd appellants by the Court of Appeal on the charge of Armed Robbery not now be quashed, having regard to the judicial and statutory definitions of the said offences
(x) Having regard to all the foregoing questions, are the appellants not entitled to an acquittal on the “omnibus” Ground
It seems to me obvious on a careful analysis that issues (ii), (iii), (vi), come within the grounds 2, 4 of conflicts, contradiction and inconsistencies in the evidence of the prosecution. Issues (iv) (v) fall within ground 3. Issue (vii) is formulated in terms of ground 5. Issues viii, ix, x, do not appear to be based on any of the grounds of appeal. They are general comments on the case as a whole. However, whilst issue ix might be regarded as formulated in terms of ground 7, and issue viii in terms of ground 6, both grounds could have been covered by the general formulation that the prosecution has failed to prove the offences charged against the appellants. Thus to avoid the undesirable prolixity in the formulation of issues for determination, it is preferable to adopt the following formulations of the issues in this appeal.
1. Whether there was sufficient evidence of identification of the appellants to support their conviction – Ground 1.
2. Was the learned trial Judge right to have convicted appellants when there were unexplained inconsistencies, contradictions and conflicts in the evidence of the prosecution witnesses – Grounds 2 & 4
3. Was the trial Judge right to have relied on the extrajudicial statement of the appellants as evidence against them at the trial Ground 5
4. Whether having allowed Samuel Nwogu alias G.O.C. whose case was inextricably tied with the appellants, the appellants ought not to have been discharged – Ground 3.
5. Whether on the evidence before the learned trial Judge, the essential ingredients of the offences of conspiracy and Robbery with Firearms were established against the appellants Grounds 6, 7.
I shall adopt the above formulation of issues in this judgment. I shall consider the issues seriatim, starting with the first.
Mr. Aluko arguing the appeal of the appellants submitted that appellants having raised alibi, the prosecution ought to have adduced sufficient evidence of their identification with the commission of the offences charged. It was further submitted that since the identity of appellants has been put in issue, the fact must be proved by the prosecution beyond reasonable doubt. The Court of Appeal on its part ought to warn itself before affirming a conviction founded on such fact. Counsel cited and relied on Abudu v. State (1985) 1 N.W.L.R. (Pt.1) 55 at p. 62, R v. Turnbull (1976) 3 All E.R. 549. Archbold’s Criminal Pleading, Evidence and Practice 42nd Ed. para. 14-2
pp.999-1001.
Counsel cited and relied on Bozin v. The State (1985) 2 N.W.L.R. (Pt. 8) 465 at p. 479 as enunciating the correct principles. It was submitted that the only eye witnesses to the crime are P.W.1 and P.W.2 who confessed they had never known the appellants before the time of the offence. In the circumstances an identification parade was necessary to ascertain their identity. There was no identification parade, and what seemed to be one fell short of the rules regulating the practice. The evidence of P.W.1 and P.W.2 who were eye witnesses are typical of the fleeting encounters, which have been held in R v. Turnbull (supra) to be suspect.
Counsel submitted that the failure of the prosecution to investigate the alibi set up by the appellants was fatal to their identification. The Court of Appeal ought to have warned itself of the risk of miscarriage of justice in relying on the evidence. It seems to me that counsel to the appellants was under the impression that identification parade is a sine qua non in all cases where there has been fleeting encounter with the victim even if there is other evidence leading conclusively to the identity of the perpetrators of the offence. I do not think so. I agree with the submission of Counsel to the respondent that an identification parade is only essential in the situations enunciated in R v. Turnbull & Ors. (1976) 3 All E.R. 549 at p. 551. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused. In such a situation a proper identification will take into consideration the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons.
In the instant case P.W.1 had described the special features of the 1st appellant, as fair in complexion and wearing a beard. He was quite close to him during the encounter. It was with no difficulty that he recognised him when 1st appellant was arrested and brought following information by the third appellant.
The 2nd accused was arrested on the information offered to the policy by the 3rd/accused 2nd appellant. 2nd appellant had confessed taking part in the commission of the crime. 4th accused 3rd appellant was seen by P.W.3 driving the vehicle stolen from the P.W.1 and P.W.2 on the same day and only less than two hours after the offence was committed. 4th accused/3rd appellant was apprehended when he abandoned the vehicle and was trying to run away. It was the 4th accused/3rd appellant who gave the name of the 1st appellant as one of those who took part in the crime. The confession of the 3rd appellant which was repudiated at the trial is clearly in conflict with the alibi raised for the first time at the trial. It has always been held that where the statement of an accused made before the trial is inconsistent with his testimony at the trial the Court should reject both as unreliable – R v. Ukpong (1961) 1 All N.L.R. 25. This is however not the same with the evidence obtained through confession. The evidence relating to the identity of the appellants as those who took part in the robbery remains admissible.
There are concurrent findings of fact on these issues in the two Courts below supporting the finding of the identity of the appellants as those who took part in the crime. No reasons have been given that the findings are perverse.
I think counsel to the respondent is right in his submission that this case is distinguishable on the facts from that of Bozin v. The State (supra). The identity of the appellants became free from doubt on the apprehension of the 4th accused trying to escape from justice after commission of the crime. Through information given by him his other confederates were discovered and apprehended.
Appellants appear to be relying on alibis they raised during the trial. It is clear from the evidence that appellants did not give police the opportunity to investigate the alibi and cannot therefore rely on it. Besides, where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted by such evidence – See Odidika v. The State (1977) 2 S.C. 21; Njovens v. The State (1973)5 S.C. 17.
It is not sufficient for the purposes of raising an alibi merely for the accused to say that he was not present at the scene of crime. He must go further to give particulars of where he was to give the prosecution an opportunity of verifying the claim – See Ntam v. State (1968) N.M.L.R. 86.
In the instant case the evidence of P.W.1 and P.W.2 who are victims and eye witnesses of the commission of the offence, coupled with the evidence derived from the information given to P.W.5 by the 4th accused sufficiently established the identity of the appellants as those who took part in the crime with which they were charged. The second issue relates to the alleged unexplained contradictions, conflicts and inconsistencies in the evidence of the prosecution witnesses.
Counsel to the appellant has in his brief of argument which he elaborated orally before us, submitted that the so many contradictions, inconsistencies and conflicts in the case of the prosecution are such that the appellants ought not to have been convicted. It was submitted that where the testimony of prosecution witnesses are contradictory on material issues, and no cogent reasons or explanations are given by the prosecution witnesses for the contradictions, it is unsafe and unreliable to base a conviction on such evidence. The cases of Onubogu & anor. v. The State (1974) 9 S.C. 1, 17-20, Arehia & anor. v. The State (1982) 4 S.C. 78, 88-89.
The crux of counsel’s argument is founded on the holding by the Court of Appeal that the contradictions in the testimonies of the 2nd accused in the commission of the crime was sufficient- to cast doubt on his identification by either of them. It was therefore submitted a fortiori the appellants.
Since respondent has not appealed against the acquittal, I do not wish to say more than that the question in issue is not only whether 2nd accused played any part, his being present merely being sufficient for the commission of the offence. There is no doubt that both P.W.1 and P. W.2 identified the 2nd accused as present as a member of the team during the commission of the offence. It was the information given to P.W.5 by 3rd accused that led to the arrest of the 2nd appellant.
Counsel has stretched the evidence of P.W.1 and P.W.2 and spelt out other contradictions in the evidence of prosecution witnesses to contend that the identity of all the appellants as participants in the crime are therefore in doubt.
For the contradictions relied upon, counsel referred to the evidence of P.W.1 and P.W.2 with respect to the participation of 1st appellant in the offence, as to whether it was the 1st or 2nd accused that shot P.W.2 on the leg and who shot him on the left thigh. P.W.1 said it was the 2nd accused who shot the P.W.2 on the leg, but P. W.2 said it was the 1st appellant who shot him on the left thigh. There is evidence that P.W.2 had two gun shots. The evidence is consistent with P.W.2 being shot at by both the 1st and 2nd appellants. The sequence in which the pointing of the gun at P.W.1 and P.W.2 and the blocking of the road by the motor cycle, was stated differently by P.W.1 and P.W.2 and was another contradiction relied upon. Counsel also referred to the evidence of an identification parade. P.W.1 saying there was, and P.W.2 saying there was none, even though both of them were at the conference room of the company.
The evidence of the order in which P.W.1 and P.W.2 were shot at and the sequence of the attack by the appellant as stated by the P.W.1 and P. W.2 were also referred to as unexplained material contradictions sufficient to justify the acquittal of the appellants.
It seems to me that counsel to the appellants has regarded the question of who shot the P.W.1 and P.W.2, or the fact of blocking the road and pointing the gun at P.W.1 and P.W.2; the correct sequence; or the sequence in which they were attacked, or whether a particular witness was aware of an identification parade as material facts.
There is no doubt, and this has been well settled that only a contradiction in respect of a material fact would make a court doubt the evidence. And what is material will depend upon the facts of the particular case – See Nasamu v. The State (1979) 6-9 S.C. 153 158-9.
I think it is right to postulate that material evidence, is such evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. The evidence referred to are not such as must necessarily be taken into consideration in determining the question, and it is neither by itself nor in connection with other evidence determinative of the issue. For instance the evidence which of the appellants shot P.W.1 or P.W.2 or in which leg P.W.2 was shot is not material to the issue of fact that P.W.1 or P.W.2 was shot. That P.W.1 or P.W.2 was shot at is material to the crime with which appellants have been charged. Similarly the sequence of the pointing of a gun at P.W.1 and P. W.2 and blocking of the road on a Motor Cycle. The fact was that there was credible evidence that the gun was pointed at them and the road was blocked by persons on a Motor Cycle. Thus none of the contradictions alleged by counsel is material to affect the establishment of the fact that the offence of robbery with arms was committed, and that appellants have been identified as those who committed the offence. The alleged contradictions are not material to the facts in issue, no explanation seems to me to be required. The contradictions identified do not fall within the scope of the rules laid down in Onubogu & anor. v. The State (1974) 9 S.C. 1 at p.20, Boy Muka & ors. v. The State (1976) 9-10 S.C. 305, Ikem v. The State (1985) 1 N.W.L.R. (Pt.2) 378 at 386. These decisions are not therefore applicable.
On the third issue Counsel to the appellants submitted that the acquittal of the 2nd accused should automatically result in the appeal of the appellants being allowed. It was contended that the evidence against the 2nd appellant who was acquitted was inextricably bound with the evidence against the appellants.  It was therefore argued there was no way the appellants should not benefit from the doubt given by the Court of Appeal to the 2nd appellant. I do not think the issue is as simple as has been presented. The Court of Appeal allowed the appeal of the 2nd appellant because of the contradiction in the evidence of the P.W.1and P.W.2 as to the part he played. The nature of the contradiction raised doubts whether in fact 2nd appellant in the court below was at the scene of the crime. This is because whilst P.W.1 in his evidence in chief and confirmed under cross-examination, said that the 2nd appellant was the person who blocked their way with a motor cycle and also jumped into the vehicle and attacked the driver and that it was he who fired the driver on the leg, P.W.2, the driver who was the victim, said and confirmed under cross-examination that it was 3rd and 4th appellants, not 2nd appellant, who blocked the road on motor cycle, but that it was 2nd appellant who shot him on the right thigh. He went on to say that 2nd appellant was never on a motor cycle. 2nd appellant was standing by the side of the road with 1st accused. The Court of Appeal considered the inconsistency in the evidence of P.W.1 and P.W.2 about the part allegedly played by 2nd appellant in the commission of the crime as material and as raising the doubt about his identity and whether in fact 2nd appellant was present at the scene of the crime. 2nd appellant only pleaded his alibi at the trial. Even then the inconsistencies in the evidence whether the 2nd appellant came on a Motor cycle and blocked the road or was standing with 1st accused by the road side suggested that either P.W.1 or P.W.2 and definitely not both of them was giving the correct account. If both are believed as the trial Judge did their account is not reconcilable with the fact of 2nd appellant being present at the scene of the crime, and must be rejected.
The evidence against the appellants is different. The P.W.2’s identification of the 3rd appellant has not been contradicted by any other evidence. In fact his evidence has been strengthened by the clues given to P.W.5 and P.W.9 by the 3rd accused and which led to the arrest of the 2nd accused. The 4th accused was seen by P.W.3 soon after the robbery driving away the vehicle stolen from P.W.1 and P.W.2. 4th accused/3rd appellant was apprehended when he alighted from the vehicle and was running away. The 4th accused/3rd appellant mentioned the 3rd accused/2nd appellant as a participant in the offence, corroborating the P.W.2.
It is important to observe that the 3rd accused made a confessional statement which he retracted at the trial. Counsel to the appellant has therefore submitted that the confessional statement cannot be relied upon for the conviction of the appellant. I do not think the submission represents the law. It is settled law that a voluntary confession which is admissible against an accused person, does not become inadmissible merely because the accused person who made it has retracted. – See Ikpasa v. The State (1981) 9 S.C.7. An accused person can be convicted on his confessional statement, alone. He may also be convicted where the confession is consistent with other ascertained facts which had been proved. – See Ntaha v. The State (1972) 4 S.C.1. Now, a confession is an admission made at any time by a person charged with a crime stating or suggesting that he committed the crime. Saidu v. The State (1982) 4 S.C.41. The statements to the Police of the 1st and 3rd appellants, Exh. 4, Exh.7, and Exh.5 are voluntary confessions that each of them took part in the commission of the offence of Robbery with arms with which they were charged.
It has been submitted that because of the two versions of the evidence of the appellants, their confessions and their oral testimony at the trial, neither of which should be believed, the confession of the appellants could not be relied upon for their conviction. I find it difficult to accept such a proposition of law. A denial of a confession by itself is no reason for rejecting the statement. The confession where voluntary is admissible. The denial is a matter to be considered in deciding the weight to be attached to the confession – See Queen v. Itule (1961) 1 All N.L.R. 462. In this case the confessions were made at the earliest opportunity, and probably when the conscience was most pricked. The retraction was made at the trial after the appellants had reconsidered their positions and framed plausible answers. They have relied on alibis without giving particulars or opportunity for verification. Their confessions are admissible and could be relied upon in determining the charges against them. The retractions are without any merit. The confessions made by the appellants, are of probative value. The trial Judge was right to have acted on them.
I now turn to the submission that the offence of conspiracy was not proved by the prosecution. Appellants were convicted for the offence of conspiracy and robbery with arms. Counsel for the appellants has submitted that no agreement constituting conspiracy to commit robbery with arms has been shown or proved or could be inferred from the circumstances of the case. It was also submitted that the acquittal of the 2nd appellant automatically result in the discharge and acquittal of the appellants.
Conspiracy in the Penal Code has been defined as an agreement by two or more persons to do or cause to be done (a) an illegal act; or (b) an act which is not illegal by illegal means. See S.96 Penal Code. Thus there can be no conspiracy unless at least two persons conspire. See Wombai and Samba v. Kana N.A. (1965) N.M.L.R. 15.
The 2nd appellant who was acquitted and discharged on all the counts of conspiracy and robbery with arms was charged together with four others, and tried with three others. His acquittal still leaves the charge with the three appellants who could be properly charged and tried for the offence of conspiracy.
An offence of conspiracy can be committed where persons have acted either by agreement or in concert. Bare agreement to commit an offence is sufficient. The actual commission of the offence is not necessary. There was evidence that appellants acted after agreement to commit the offence of Robbery with arms. This constitutes the offence. The trial Judge was right in convicting appellants for the offence of conspiracy. The Court of Appeal correctly affirmed the conviction.
Counsel to the appellants has submitted that the essential ingredients of the offence of robbery with arms with which appellants were charged have not been proved. It was argued that there was no evidence of firearms or offensive weapons and none was recovered from any of the appellants. There was no evidence of wounding or use of personal violence on anybody during the commission of the alleged crime.
Counsel attacked the evidence of P.W.2 as unreliable and that it ought to be disregarded in the determination of the guilt of appellants for all purposes of this appeal.
There seems to me some misunderstanding by counsel of the evidence against the accused persons at the Court of trial. There was uncontradicted evidence by P.W.1 and P.W.2 that their assailants shot and wounded them and dragged them out of the vehicle before driving away with the vehicle.
There was the medical evidence of Dr. Robert Chinwuba Igboanugo, P.W.10, who treated the wound on P.W.1. The wound P.W.10 treated was consistent with gun shots. P.W.10 said in evidence that P.W.2 had two gun shot wounds which appeared to have been fired at close range. This evidence is consistent with the evidence of P.W.2 that he was shot at by the assailants.
Now, the offence of robbery with firearms is committed where at the time of the commission of robbery, the accused is proved to have been armed with “firearms” or “offensive weapon” within the meaning of section 9 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970. Any person in company of a person so armed, or aiding and abetting in the commission of the offence is similarly guilty. – See S.1(1)(2) of the Act No. 47 of 1970- Nwachukwu v. The State (1985) 3 N.W.L.R. (Pt.11) p.218. Okosun v. A.G. Bendel State(1985) 3 N.W.L.R. (Pt.12) 283 at p.286. A gun is a “firearm” within the definition of Section 9 of the Robbery and Firearms (Special Provisions) Act No.47 of 1970. – See Nwachukwu v. The State (supra).
It seems strange to me that considering the evidence before the learned trial Judge, that appellants shot at P.W.1and P.W.2 with a gun, the definition of the offence of Robbery with firearms, and the decisions of our Courts on the liability of persons charged with the offence, counsel could argue that the essential ingredients of the offence were in the instant appeal not proved.
I am satisfied that the learned trial Judge was right in convicting appellants on the evidence before him and the Court of Appeal correctly affirmed the conviction and sentence of the appellants.
I therefore will affirm the judgment of the Court of Appeal dismissing the appeal of the appellants against their conviction and sentence. The appeal of each of the appellants is hereby accordingly dismissed.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother, Belgore, J.S.C., and I am in full agreement with him that the appellants’ appeal should be dismissed.
From the way this appeal was argued both in the briefs and oral submissions before us, it becomes necessary to re-emphasise once more some aspects of this case that one comes across now and again in the criminal case namely:-
(i) Need for Identification Parade.
(ii) Alibi raised for the first time in the witness box.
(iii) Conflicts and contradictions in prosecution evidence.
Identification and Identification Parades
The appellants attacked the decision of the two courts below arguing that there was no identification parade. In criminal cases, the crucial issue is not ordinarily whether or not the offence was committed. Usually, the controversy rages over the identification of the person or persons accused as the actual perpetrators of the offence charged. Identification evidence is thus evidence tending to show that the person charged is the same as the person who was seen committing the offence. In identification evidence, the witnesses testify that the accused is the person they saw committing the offence, that they either knew him before or that they saw him for the first time during the commission of the offence and now recognise him as the person they saw at the scene, at the time of the commission of the offence and who was actually committing it.
Where the witness first acquaintance with the accused is during the commission of the offence, there, an identification parade may be held. But such a parade is not fool proof. It is not a guarantee against the usual errors of observation, errors of recognition or errors in reconstruction. The criminal law is full of cases of mistaken identity – see The Trial of Adolf Beck ed. E.R. Watson (Edinburgh 1924); the case of Walter Graham Rowland (1947) 32 C.R. App. R.29. In Rowland’s case supra, there was an identification parade and Rowland was identified by three independent witnesses. Yet later on, Ware confessed that he and not Rowland was the actual murderer. The courts have therefore got to guard against cases of mistaken identity.
Learned Counsel by purposeful cross-examination should endeavour to expose the errors of observation, of recognition, of resemblance etc. Identification parade is not just the answer. The trial court should be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the court was the person who actually committed the offence charged.
In this case, the P.W.1 had enough time to observe the 1st appellant. He (P.W.1) described the 1st appellant as fair in complexion and wearing a beard. These are signs of recognition and therefore of identification. Also immediately the 1st appellant was brought in, after his arrest, P.W.1 quickly, spontaneously and readily identified him as one of those who robbed him and P.W.2. This spontaneous identification of the 1st appellant will certainly carry more weight than the common place ritual of an identification parade which can be tele-guided.
The 3rd accused – the 2nd appellant in this court needed no further identification. By his confession, he identified himself. In his case, there was thus no need for any further identification parade. The 2nd accused was identified by his brother thief – the 3rd accused who gave information leading to his arrest. The 4th accused, the 3rd appellant in this court was seen by the P.W.3 driving the very car stolen in the robbery less than 2 hours after the event. His attempted escape further identified him as one of the robbers.
Circumstantial evidence showing an accused person’s involvement in the commission of the offence charged can also be evidence of identification. In a case like the one now on appeal, there is no need for an identification parade. None was in fact held and the prosecution case was not the weaker for it.
Alibi raised for the first time in the Witness Box
The prosecution has a duty to investigate an accused person’s alibi but only when such alibi is set up at the earliest opportunity during the investigation stage preferably in the accused person’s statement to the police. An alibi raised for the first time from the witness box cannot be considered as a serious defence. At best it is an after-thought. The positive evidence of the prosecution witnesses will outweigh this weak and belated alibi. The two courts below were right in preferring the positive evidence of the prosecution witnesses to the half-hearted and belated alibi of the appellants.
Conflicts and Contradictions in evidence of prosecution witnesses.
Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be a badge of truth. But when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial court should not believe contradictory evidence. Contradictory means what it says – contra-dictum-to say the opposite. Contradiction should be on a material issue to amount to material contradiction. Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. Whether the P.W.2 was shot on the leg or thigh is again not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & anor. v. The State (1974) 9 S.C.1 at p.20 arises only when there are material contradictions. I see no such contradictions in this case.
It was also submitted that since all the accused persons were charged with the same robbery and the same evidence was tendered in proof, the acquittal of the 2nd accused should have also led to the acquittal of the other appellants. That is a fallacy. The short answer is – It does not follow. If there was a mistake (as indeed there was) in acquitting the 2nd accused, an appellate court is not expected to persevere in that error as two wrongs do not make one right. In the recent case of The State v. Aibangbee (1988) 3 N.W.L.R. (Pt.84) 548, there was such wrongful acquittal and the State appealed against the wrongful acquittal. This court remedied the error by convicting all three.
In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Belgore, J.S.C. which I now adopt as mine, I too, will dismiss the appellants’ appeal and abide by all the consequential orders in the lead judgment.

NNAEMEKA-AGU, J.S.C.: The three appellants who were 1st, 3rd and 4th accused persons respectively, were charged tried, and convicted along with one Samuel Nwogu (alias G.O.C.) (2nd accused) before a Kana High Court presided over by Ubbaonu. J. The 5th accused person, John Ekesiobu, did not appear for his trial and, so, his trial was stayed. They were all charged together on four heads of charge which included agreement to rob and armed robbery of a motor vehicle No. KN8647 KK, as well as agreement to rob and armed robbery of the sum of N10.507.00 from Emmanuel Abaraoha and Mallam Sani Abdullahi – contrary to various sections of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970, as amended. The 2nd accused was discharged by the Court of Appeal. coram: Wali, Maidama, and Akpata, JJ.C.A. My learned brother, Belgore, J.S.c., has set out the details of the charge and the facts leading up to this appeal. He has also set out the issues for determination in this appeal. I do not intend to repeat any of them in this judgment. I only wish to underscore some points on my own.
The learned Counsel for the appellant submitted that the appellants were entitled to acquittal because the defence of alibi raised by each of the appellants was not rebutted by the prosecution. Counsel conceded it that none of the appellants raised any defence of alibi in his statements to the police – Exhs. 4, 7, and 5 respectively. Rather each statement is either an outright confession or at least a confirmation of the prosecution’s case against each appellant. In the witness box, each denied his statement, and for the first time raised a defence of alibi, after the prosecution had closed its case.
It is necessary, I believe to restate some of the basic requirements of a defence of alibi. In England, the defence is now regulated by statute. Under section 11 of the Criminal Justice Act, 1967. on a trial on an indictment the defendant shall not, without the leave of court, adduce evidence in support of an alibi, unless before the end of a prescribed period before the trial begins, he gives notice of particulars of the alibi. The granting or refusal of such leave is a matter of discretion which must be exercised judicially: R v. Jackson (1973) Crim. L. R. 356. The court cannot, however, completely shut-off a defence of alibi merely because the defence has given the notice of the particulars of the alibi rather late: R. v. Sullivan (1971) 1 Q.B. 253. In Nigeria, where alibi is still a common law defence, the underlying principles are the same. As the defence merely implies that the defendant was elsewhere at a time when the offence charged was alleged to have been committed at a particular place, it is a matter especially within the knowledge of the defendant. So, much as the onus is all through on the prosecution to prove the case against the defendant, he has the primary duty of raising his defence of alibi at the earliest opportunity and giving such particulars of where he was that the prosecution can investigate. In this case each appellant failed to discharge that initial evidential burden. As it was so, the learned trial Judge, in keeping with the fact that a Judge, in a criminal case, was bound to consider a defence no matter how stupid could not ignore the evidence of alibi raised for the first time in the witness box. But the appellants could not expect the prosecution to investigate the alibi of which it had no notice before it closed its case. Also, while, in each case, the learned Judge giving a consideration to the defence of alibi for what it was worth, he was entitled to have rejected it if he found, as he did, that the prosecution called stronger evidence linking each appellant to the crime charged. I am satisfied that the defence of alibi was correctly rejected by the learned trial Judge and its rejection correctly confirmed by the Court of Appeal.
What was therefore, the stronger evidence called by the prosecution for which the court of trial was entitled to reject the evidence of alibi The most damnifying piece of evidence was that of P.W.3, Inspector Kassim Aliyu. Shortly after the robbery in which the car (Exh.2) and the money were snatched from P.W.1, a cashier, and P.W.2, a driver, both employees in the Truck Manufacturing Company Limited, Kana, P.W.3 got information of the robbery and in a private car went in search of the robbers. At Maiduguri Road Junction, Kano, he saw the car, Exh.2, being driven by a person who turned out to be the 3rd appellant. There were other occupants in the car. He pursued the car. At a point the other occupants disembarked. The 3rd appellant abandoned the car, Exh. 2. P.W. 3 chased him and, with the assistance of P.W.4 and other police officers at a check point, he captured the 3rd appellant. The voluntary statement (Exh.5) made by the 3rd appellant was confessional and confirmed by him before a Superior Police Officer. That statement, Exh. 5, gave details of what part each of the appellants played in the planning and execution of the robbery. Each of 1st and 2nd appellants made confessional statements Exhs. 4 and 7 respectively.
Those statements were disowned by each appellant in the witness box, but they were found to have been voluntarily made. Moreover, certain consequential discoveries made by the police reinforced the case for the prosecution. For example, when the house of the 1st appellant was traced following the statement of the 3rd appellant, the broken side mirror of the Honda Motor-cycle, Exh. 3, which was used for the robbery was found inside the 1st appellant’s 404 saloon car. There was abundant evidence outside the confessional statements, Exhs. 4, 7, and 5 to link each appellant with the commission of the crimes charged. So the requirement of the law that it is desirable to have, outside a confession, some evidence of circumstances which make it probable that the confession was true was amply satisfied in this case. See on this: Paul Onachie & Ors. v. The Republic (1966) N.M.L.R. 307. There was no doubt that the crimes charged were committed and the hot pursuit by P.W.3, the discovery of the side mirror of the motorcycle used for the robbery in 1st appellant’s car and other evidence called by the prosecution leave no one in doubt that each appellant not only had the opportunity to have committed the crimes charged but also that each was a culprit. See Phillip Kanu & anor. v. R. (1952) 14 W.A.C.A. 30; also R. v. Chukwuji Obiasa (1962) W.N. L. R. 354. Taking the confessional statement of each appellant together with other evidence against him I am satisfied that each of them was rightly convicted. It must be noted that in a case like this, the statement of each appellant was part of the case the prosecution put forward against him, though not against his co-accused. Where, as in this case, an accused/appellant abandoned such a statement and belatedly raised a defence of alibi which was rejected and there was other abundant evidence implicating the accused/appellant with the offence charged, an appellate court cannot but dismiss the appeal.
I am of the view that the other points raised by the learned Counsel for each appellant have no substance. In view of the nature of the evidence particularly the testimony of P.W.3, and Exhs. 4, 7, and 5, there was no need for an identification parade. Such discrepancies as there were in the evidence of P.W.1 and P.W.2 are only to be expected where two persons have to identify the culprits standing behind the barrels of guns. I do not consider them as amounting to substantial contradiction. The offences of conspiracy and robbery were proved to the hilt against each appellant. The 2nd accused at the trial was only lucky to have been discharged by the Court of Appeal. As there is no cross-appeal against his discharge, I shall say no more about it save to observe that his discharge is no valid ground for the discharge of the other appellants, considering the true nature of the case and the evidence adduced against each of them.
For the above reasons, I agree with the opinion in the judgment of my learned brother, Belgore, J.S.C., that the appeals have no merit, I hereby dismiss the appeal of each appellant.

Appeal dismissed.

 

Appearances

Bankole Aluko For Appellant

 

AND

Shehu S. Dokogi, Senior State Counsel (with him, Falla Maideen, State Counsel, Kana State) For Respondent