RICHARD GONI v. THE STATE (2014)

RICHARD GONI v. THE STATE

(2014)LCN/7250(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of May, 2014

CA/K/262C/C/2011

RATIO

BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF MOVES FROM THE PROSECUTION IN CRIMINAL TRIALS

In criminal proceedings the burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt and the burden never shifts. The prosecution has the duty to prove all the ingredients of the offence charged beyond reasonable doubt and no more. The standard of proof is such that if there is any doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See;
Omogodo Vs State (1981) 5 SC 5;
Amodu vs state (2010) 2 NWLR (Pt.1171) pg.47 at 68-69. per ABDUL ABOKI, J.C.A.

WHETHER AN ALIBI CAN BE RAISED AS A DEFENCE IN A CRIMINAL TRIAL

EXCEPTION TO THE CONVICTION OF AN ACCUSED ON THE EVIDENCE OF A SINGLE WITNESS

An accused person may be convicted on the evidence of a single witness. The only exception is where the offence or charge statutorily requires corroboration to give support or strength to the assertion of the prosecution. See; Amodu vs State (supra) at 78.
However, armed robbery as in the instance case is not one of such offences that require corroboration. See the cases of;
Ndidi Vs State (2007) 13 NWLR (Pt.1052) pg.633;
Tanko Vs State (2008) 16 NWLR (Pt.1114) pg.597 at 640. per ABDUL ABOKI, J.C.A.

INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

RICHARD GONI Appellant(s)

AND

THE STATE Respondent(s)

ABDUL ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna state High Court delivered on 06/06/2011 by G. Kurada J. whereby the Appellant was convicted and sentenced to death for the offence of Criminal Conspiracy and Armed Robbery.

The two (2) counts charge against the Appellant who was the 1st accused person and 4 other accused persons charged along with is adumbrated as follows:
THE CHARGED:

“COUNT ONE”
That you Richard Goni, Titus Simon, Luka Adamu, Dan Kagoma (at large) and Mathew (at large) on or about the 28th August 2008 agreed to do an illegal act to wit: armed robbery. Which armed robbery you carried out in pursuance of the said agreement and you thereby commited the offence of criminal conspiracy punishable under Section 6(b) of the Robbery and Firearms (special provisions) Act CAP R11 Laws of the Federation 2004.

“COUNT TWO”
That you Richard Goni, Titus Simon, Luka Adamu, Dan Kagoma (at large) and Mathew (at large) on or about the 28th August 2008 while armed with locally made pistols attacked the house of Chris Ike Okpe at No. 2 Kudenda Street, Sabon Tasha, Kaduna and robbed him of two Nokia and one Sagem GSM handset, one HI target and one deluxe wrappers, three sets of tie and dye materials, N18,000.00 cash and other valuables and you hereby committed the offence of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (special provisions) Act Cap R11 Laws of the Federation 2004.”

The Appellant pleaded not guilty to the 2 counts charge. To prove its case the prosecution called 3 witnesses and tendered 5 Exhibits. The Appellant testified in his defence. At the close of their case the prosecution and the defence counsels, were given the opportunity to address the Court.
In convicting and sentencing the Appellant and other accused persons to death, the trial court in its judgment said inter alia thus;
“From the analysis I have made of the evidence of PW1, PW2 and PW3 vis-a-vis the contents of exhibits 1, 4 and 5, I hold the view that the confessions have passed the above tests and I have no doubt in my mind that the accused persons were the robbers that robbed the PW2 on 28/08/2008. I hold that the prosecution has proved its case against the three accused persons beyond reasonable doubt as required by law….. I find each of the three accused persons guilty of both counts of the charge and I hereby convict each of them of each of the two counts.
On count one of the charges, I sentence each of the convicts to death by hanging by the neck till he be dead or to suffer death by firing squad as the Governor of Kaduna state may direct
On count two of the charges, I sentence each of the convicts to death by hanging by the neck till he be dead or to suffer death by firing squad as the governor of Kaduna state may direct.”

Aggrieved by this decision of the lower Court the Appellant who is now a prisoner on the death row at Central Prison Kaduna filed a notice of appeal dated 19th August, 2011. The said notice of appeal contained 7 grounds of appeal and they are hereby adumbrated as follows;

GROUNDS OF APPEAL:
GROUND 1
“The trial judge erred in law when he held that from their statements the accused persons formed a gang of armed robbers and they went together and robbed the PW2.
PARTICULARS
“i. The Appellant denied ever making the statement upon which the conviction was based.
ii. PW2 clearly stated in evidence that he could not identify any of the persons who robbed his house.
iii. PW2 never gave evidence that he identified the Appellant as being one of the robbers who came to his house.
iv. There is no evidence on the record to establish the fact that the Appellant had ever met or that he even knew the other accused persons before they were arrested.
v. The prosecution did not establish beyond reasonable doubt that the Appellant joined any other person to form a gang of armed robbers or that the Appellant together with any other person robbed PW2.

GROUND 2
“The learned trial judge erred in law when he found the Appellant guilty of the offences of conspiracy and armed robbery.
PARTICULARS OF ERROR
i. The PW2, who was the only identified victim of the alleged robbery, gave clear evidence of the fact that he could not identify any of the robbers.
ii. There was no evidence before the court that was capable creating an evidential and/or circumstantial nexus between the crime and the Appellant herein.
iii. The prosecution did not prove beyond reasonable doubt that the Appellant committed the offences.

GROUND 3
The trial judge misdirected himself on the facts when he held that the evidence of the prosecution witnesses that the Appellants took them (the police) to the houses they robbed was not challenged by the accused persons.
PARTICULARS OF ERROR
i. There is evidence on the record that DW1 under cross examination by the DPP, categorically denied that they took policemen to the house of the victim of the robbery.
ii. There is evidence on the record that DW3 in his evidence in chief said that he was not taken to any place that he robbed from as stated by PW2.

GROUND 4
The learned trial judge misdirected himself on the facts when he found that throughout the evidence of the Appellant in defence, the Appellant made no reference to the statement, that the Appellant did not deny making the statement and did not say that he was forced and beaten to sign it.
PARTICULARS OF ERROR
i. There is evidence on record to show that in the course of the trial, the Appellant objected to the tendering of Exhibit 1 when the prosecution sought to tender it.
ii. There is evidence on the record to show that the Appellant’s objection to the tendering of Exhibit I at the trial was on the ground that the Appellant was forced and beaten before he could sign the statement.
iii. The evidence of the Appellant to the effect that he was forced and beaten to sign the statement remained uncontested and uncontroverted throughout the trial.
iv. There is ample evidence on the record to show that the statement of the Appellant was recorded by PW1

GROUND 5
The learned trial judge erred in law when he held that the defence of alibi raised by the Appellant was only a ploy.
PARTICULARS OF ERROR.
i. The Appellant gave details of his whereabout on the date the crimes were allegedly committed.
ii. The evidence on the record shows that the Appellant was in police custody when the crimes in issue were allegedly committed.
iii. The Appellant raised the issue of alibi at the earliest opportunity available to him.

GROUND 6
The learned trial judge erred in law when he held that the statement allegedly made by the Appellant passed the test for a confessional statement.
PARTICULARS OF ERROR
i. There is no evidence on the record outside the said confessional statement that shows that the statement could possibly be true.
ii. The confessional statement is not corroborated in anyway by other evidence on the record.
iii. There is uncontroverted evidence on the record to show that the accused person was beaten and tortured into signing the purported confessional statement.
iv. There is evidence on the record to show that the accused did not have the opportunity of committing the offence.

GROUND 7
The judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.”

Parties to this appeal exchange their respective brief in accordance with the rules of the Court.

The Appellant’s brief of argument prepared by Abimbola Akeredolu (Mrs) Esq. was dated 12th October, 2011 and filed on the same date. Learned counsel for the Appellant adopted the said brief as the Appellant’s argument in this appeal and urged the Court to set aside the conviction of the Appellant by the court below and discharge and acquit the Appellant.

The Respondent’s brief of argument prepared by A. T. Kehinde Esq. was dated 3rd May, 2012 and filed on 8/05/2012 but deemed filed on 5/2/2013. Learned counsel to the Respondent adopted the said brief as the Respondent’s argument in this appeal and urged the Court to dismiss the appeal and affirm the decision of the Lower Court.

The Appellant in his brief of argument formulated 2 issues from the grounds of appeal contained in his notice of appeal and is adumbrated as follows;
“1. Whether the prosecution has adduced such evidence as to ground a conviction of the Appellant of the offences of criminal conspiracy and armed robbery? (Grounds 1, 2, 3, 4 and 6).
2. Whether the Appellant successfully raised the plea of alibi? (Grounds 5).”

The Respondent adopted the issues formulated by the Appellant as his issues for determination in this appeal.

I shall therefore adopt same for the determination of this appeal.

ISSUE ONE:
Whether the prosecution has adduced such evidence as to ground a conviction of the Appellant of the offences of criminal conspiracy and of armed robbery? (Grounds 1, 2, 4 and 6).

Learned Appellant counsel contended that the burden of proof lies on the one who alleges and not on him who denies, and that in a criminal case, the onus is on the prosecution to prove the essential elements which make up the offence of which the accused is charged with. He referred the Court to Section 132 of the Evidence Act and the cases:
CONSTANNE LINE VS IMPERIAL SMELTING CORPORATION (1942) AC 154 AT 174; ANI VS STATE (2009) 16 NWLR (PT.1168) 443.

He submitted further that where the prosecution fails to prove, the accused is entitled to an acquittal and if as in the instant case, the accused is convicted; he is entitled to have the conviction quashed on appeal. He referred this honourable Court to the cases:
R V. EKE (1945) 11 WACA 39;
WOOLMINGTON V DPP (1935) AC 462;
KINNAMI VS BAUCHI N.A (1957) NRNLR 92.

Learned counsel to the Appellant submitted that the standard of proof in criminal cases is beyond reasonable doubt and not beyond all shadow of doubt and he referred the Court to the following cases:
MILLER vs MINISTER OF PENSIONS (1947) 2 ALL ER 372;
MILLAR vs STATE (2005) 1 NWLR (PT 927) 236;
SHEHU vs STATE (2010) 2-3 SC (PT.1) 158, and many other cases.

He also submitted that the expression “beyond reasonable doubt” in evidence means fully satisfied or entirely convinced and that in criminal cases, the guilt of the accused must be established to that standard i.e beyond reasonable doubt. He argued that the question which must be answered is whether the guilt of the Appellant was proved beyond reasonable doubt? He submitted that in the instant case the answer is in the negative.

On the charge of criminal conspiracy against the Appellant, learned counsel to the Appellant submitted that it is trite law that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act by illegal means. He argued that the bottom line of the offence is the meeting of minds of the conspirators to commit an offence and that for the offence criminal conspiracy to have been said to be committed, positive and affirmative action of the parties must be proved. He referred this honourable court to the case of OMOTOLA vs STATE (2009) 7 NWLR (PT 1139) 151.

Learned counsel to the Appellant further contended that for a person to be guilty of criminal conspiracy, the following essential elements of the offence must co-exist and must be complete:
1. There must be a real agreement with the parties having agreed to all the major details of the crime or crimes to be committed within the territorial jurisdiction of the Court.
2. The parties must intend or know the facts which make their conduct criminal.
3. It must involve an over act in furtherance of the conspiracy.
He referred the Court to the cases of;
OMOTOLA VS STATE (SUPRA)
YAKUBU VS FRN (2009) 14 NWLR (PT 1160) 151.

He submitted that where any of the above stated ingredients are not met, the accused person will be said not to have committed the offence. He maintained that criminal conspiracy cannot be implied from mere statements of the accused, but from positive and affirmative overt acts of the parties to have conspired. He reproduced the summary of the evidence of PW1, PW2 and PW3 and submitted that the law is well settled on the point that hearsay evidence is inadmissible, he referred this court to the case of TEPER v R (1952) AC 480 and the cases of
GABRIEL v STATE (2010) 6 NWLR (PT.1190) 280 AT 323 and
UTTEH V. STATE (1992) 2 NWLR (PT.223) 257.

Learned counsel to the Appellant also contended that if a piece of evidence is wrongly received in evidence by the trial court, an appellate Court has the inherent jurisdiction to exclude or expunge it from the records. The Court was referred to the case of HARUNA vs KSHA (2010) 7 NWLR (PT.1194) 604. He urged the court to expunge from the records the evidence of pw3 for being hear-say.
He submitted further that apart from the confessional statement of the Appellant, there is no other evidence on record to suggest that there was an agreement between the Appellant and any other person to commit the alleged offence of armed robbery.

Learned counsel to the Appellant contended that it is abundantly clear from the foregoing that the prosecution failed woefully to discharge the onus of proof placed on it by law to the required standard that the Appellant was guilty of the offence of criminal conspiracy. He insisted there was no basis for the trial Court to convict the Appellant for the offence of criminal conspiracy. He urged the Court to so hold.

On the second count charge of Armed Robbery against the Appellant, learned counsel to the Appellant submitted that the law is settled that the ingredients of the offence of armed robbery are as follows:
1. That there was a robbery or series of robberies
2. That the robbery or each robbery was an armed robbery.
3. That the accused took part in the armed robbery.
He referred the Court to the cases of:
BOZIN VS STATE (1985) 2 NWLR (PT 8);
NWACHUKWU VS STATE (1985) 3 NWLR (PT.11) 218;
SUBERU VS STATE (2010) 8 (1197) 586.

He argued that in the instant case, the second count charge contained in the charge sheet, which the Appellant together with the 2nd and 3rd accused persons were tried, is to the effect that the offence took place on or about August 28th 2008 at the house of one Chris Ike Okpe at No. 2 Kudenda Street, Sabon Tasha Kaduna. It follows therefore that the prosecution must as a matter of necessity adduce evidence to show beyond reasonable doubt that the Appellant took part in the Armed Robbery exercise on the said date and at the same venue, a task the prosecution failed woefully to do. Learned counsel insisted there is no evidence on the record suggesting that the Appellant committed the offence of Armed Robbery. He argued that even the confessional statement of the Appellant admitted as Exhibit 4 does not suggest that the Appellant committed the offence of armed robbery as contained in the second count of the charge. He reproduced the said confessional statement found at pages 30-31 of the records in which the Appellant stated inter alia as follows;
“When I was still in school I came across one Titus whom introduced me to this Armed Robbery operation in television village in the month of March, when I followed them for the first operation. I saw them carrying local guns and they have two locally made pistols and two iron rods. That day I also met two men for the very first time which we all did the operation together. The two men I met that night are Luka and Dankagomai, while it was Me and Titus that came together for the operation. Luka and Titus held the two guns while Me and Dankagomai held two iron rods. They again invited me for the second time that after some months interval in Tirkanas, while the last two where in Sabon Tasha. During operation we collected money, Dvd and two Laptops, Wrappers…” (underline mine for emphasis)

Learned counsel to the Appellant submitted that the above confessional statement created doubt as to the exact armed robbery operation allegedly referred to by the Appellant in his statement.
Learned counsel to the Appellant argued that one important fact that stands out in all these is that the Appellant never confessed or admitted that he participated in the robbery incident at the house of Chris Ike Okpe at No 2 Kudenda Street, Sabon Tasha Kaduna. He submitted that even the learned trial judge found as a fact that the confessional statement of the Appellant did not state that the Appellant participated in the robbery that took place at the house of one Chris Ike Okpe at No. 2 Kudenda Street, Sabon Tasha Kaduna, but nevertheless the trial Court proceeded to find the Appellant guilty of armed robbery based on count two of the charge. Learned counsel submitted that this conclusion by the trial Court is faulty for many reasons. He referred this court to page 91 of the records.
Furthermore, learned counsel to the Appellant contended that a trial Court is only entitled in law to act on evidence before it, as such, a trial Court is not entitled to speculate (as was the case in the instant case) on facts, so as to arrive at a conclusion one way or another in any given case. He referred the court to the case of AGIP (NIG) LTD V. AGIP PETROLI INTERNATIONAL (2005) 5 NWLR (PT 1187) 348.

Learned counsel to the Appellant also submitted that a decision based on speculation by a trial judge as in the instant case is liable to be set aside. Accordingly, he urged the court to set aside the conviction of the Appellant. He referred the Court to the case of ELIAS vs OMO-BARE (1992) 5 SC AT 46-47. He insisted that the prosecution has failed woefully to discharge the onus placed on it by law to prove beyond reasonable doubt against the Appellant as stated in the charge proffered against him. Learned counsel to the Appellant submitted that if at the end of the trial, there is reasonable doubt created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution has not made out his case and the prisoner is entitled to an acquittal. He referred this honourable Court to the cases:
EDET OFFIONG EKPE VS THE STATE (1994) 9 NWLR (PT 368) 263
WOOLMINGTON VS THE DIRECTOR OF PUBLIC PROSECUTION (1935) AC 462;
NAMSOH VS THE STATE (1993) 5 NWLR (PT 292) 129.

Learned counsel to the Appellant urged this honourable Court to hold that the prosecution has not adduced such evidence as to ground a conviction of the Appellant of the offence of armed robbery.

On the other hand, learned counsel to the Respondent submitted that it is trite law that in proving any allegation against any person, such allegation must be proved by the one who asserts or claims that such set of facts exists. He referred the Court to Section 132 and 135 (1) of the Evidence Act 2011. He submitted that from the records of proceedings, clear and concrete evidence was led against the Appellant that led to his conviction. He referred the Court to the case of ADELEKE VS STATE (2012) 5 NWLR (Pt.1292) 135 and submitted that what the prosecution did at the trial Court is sufficient to be termed “proof beyond reasonable doubt.”

Learned counsel to the Respondent argued that the Appellant asking which year, day, hour and minute the particular robbery was committed and also the name of the owner of the house is simply asking the Respondent to prove its case beyond all shadow of doubt. He maintained that if the essential ingredients of the offence have been proved by the prosecution, the charge is proved beyond reasonable doubt. He referred the Court to ADELEKE vs STATE (SUPRA).

On the issue of criminal conspiracy charge against the Appellant, learned counsel to the Respondent submitted that this court in the case of ADELEKE vs STATE (supra) defined conspiracy as:
“Conspiracy has been held to be a meeting of the mind of the conspirators to carry out an unlawful act or to carry out a lawful act by unlawful means…”

He also referred this Court to the definition of conspiracy by the Supreme court in the case of ADEJOBI vs STATE (2011) 12 NWLR (PT.1261) 375:
“Conspiracy is a criminal offence not defined in the criminal or penal codes. It is accepted as an agreement of two or more persons to do an act which is an offence to agree to do. As direct practice, evidence of the plot between conspirators is hardly capable of proof; the courts establish the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence, and the meeting of the minds needs not be physical…”

He submitted that the ingredients of conspiracy as submitted by the Appellant are contrary to the decision of the Supreme Court in ADEJOBI vs STATE (SUPRA). He argued that in the instant case, there was even a “physical meeting of the minds of the Appellant and his co accused” as evidenced by the confessional statement of the Appellant at page 30 of the records when he said:
“…when I was still in school, I came across Titus who introduced me to a gang of armed robbery operation in television village Kaduna…”

He submitted that the above extract is from the confessional statement of the Appellant.

Furthermore, learned counsel to the Respondent submitted the Appellant tried to make heavy weather of the statement of PW3 when he said that the Appellant and his co-accused were arrested with some wrappers and GSM Handsets. Learned counsel conceded that hearsay evidence is inadmissible evidence and also if evidence is wrongly admitted in a court of law, such wrongly admitted evidence ought to be expunged from the records of the court however, he referred this Honourable Court to the case of ABOKOKUYANRO VS STATE (2012) 2 NWLR (PT 1285) PG 556 which is to the effect that:
“where a witness gives account of information of what he hears directly from another person, the information cannot be termed hearsay.”

He argued that what Pw3 told the trial Court on page 61 cannot in anyway be classified as hearsay evidence as he learned it directly from the DPO on the day of the arrest, and Pw3 stated categorically that he was the IPO on duty on the fateful day. He submitted that in the light of the decision in the case of ABOKOKUYANRO vs STATE (SUPRA), the testimony of PW3 in this regard cannot be termed as hearsay evidence.
Learned counsel to the Respondent also submitted that the Appellant tried to make an issue out of the fact that he denied taking the Respondent to the scene of the robbery. The evidence of the pw3 was not challenged during cross-examination by the Appellant and it is a well-known principle of law that evidence that is unchallenged during trial is deemed as admitted. He referred this Court to the cases of:
GEGE VS NANDE (2006) 10 NWLR (PART 988) PG 290;
BABA-IYA VS SIKELI (2006) 3 NWLR (PT 968) PG 542;
ADAMS VS A-G FEDERATION (2006) 11 NWLR (PT 991) PG 363-364

Learned counsel to the Respondent submitted that conspiracy does not necessarily involve a physical meeting of the persons so accused, it is really a meeting of their minds to do such illegal act, and that it is clear from the confessional statement of the Appellant that this element of conspirary was indeed present in this case. He urged the Court to so hold.

On the charge of armed robbery against the Appellant, learned counsel to the Respondent submitted that from the Appellant’s confessional statement, he told the police that he took part in some of the robberies in Sabon Tasha and different parts of Kaduna even though he did not mention the year the offences were committed. This is enough to cast aspersions on the Appellant that he may have taken part in the robbery in PW2’s house.

Learned counsel to the Respondent argued that it is not and has never been the usual practice of armed robbers to conduct a personal interview of their victims before moving in on them to carry out their evil deeds and it would not be surprising to find out that the Appellant does not know the name of the victims of his robbery operation or even the so called house address where he carried out the robbery.
On the point raised by the Appellant that how one could be sure that it was the robbery in PW2’s house, particularly that the Appellant took part in. He argued that after the operation in Sabon Tasha, PW2 was recorded to have reported the robbery in his house to the police. Also in the course of reporting the robbery, PW2 stated clearly that 4 wrappers were stolen from his wife and when the Appellant was making his confessional statement, he mentioned amongst other things they had stolen wrappers.
Learned counsel to the Respondent submitted that it has been stated in ADELEKE VS STATE (SUPRA) that:
“…the purport of proof in all criminal trials is that if the essential ingredients of the offence have been proved by the prosecution, the charge is proved beyond reasonable doubt.”
He further submitted that in the case of SEWEMIMO VS. STATE (2012) 2 NWLR (PART 1284) PG 400, the ingredients of armed robbery were mentioned as:
“For an offence of armed robbery, the following three essential ingredients must be proved:
1. That there was a robbery or series of robberies;
2. That the robbery or robberies was an armed or were armed robberies;
3. That the accused person took part in the robberies.”

Learned counsel to the Respondent referred this Court to pages 31-32 of the records of proceedings which bears the confessional statement of the Appellant and submitted as follows:
“(a). “that there was a robbery or series of robberies”:
this was clearly confessed to by the Appellant when he said;
“….I followed them for the first operation…”
This is to the effect that there was indeed a series of robbery which he participated in.
(b) “that the robbery or robberies was an armed robbery or were armed robberies”: this is also clearly answered by the Appellant’s confessional statement when he made mention of the fact that they were armed with guns and sticks when they went for the robbery. Also PW.2 stated categorically in his evidence that on the day the robbers came to his house they shot at his house and destroyed his windows and some part of his ceiling. (Reference to page 58 of the records).
(c) “that the accused took part in the robberies” is a point that is very well confirmed by the Appellant in his confessional statement as he stated it clearly that he went for operations with his gang, not even once but at least twice.”

On the Appellant’s argument that the only evidence the Respondent has against the Appellant is his confessional statement, learned counsel to the Respondent submitted that proof proffered by the Respondent at trial is both proof of involvement of the Appellant in the armed robbery and proof of his conspiracy, and it was the confessional statement made by the Appellant while in the custody of the police, and that there is no-where in the records where the voluntariness of the statement of the Appellant was challenged. He referred this honourable Court to the case of OSENI VS STATE (2005) 5 NWLR (Pt.1293) 382-383 where it was held that:
“Even without corroboration, a confession is sufficient to support a conviction, so long as the Court is satisfied of its truth. Thus a confessional statement, if it is free, direct, positive unequivocal and voluntary is enough to ground conviction…”

Learned counsel to the Respondent also submitted that the confessional statement of the Appellant was voluntary and it also proved all the elements of the offences charged. He urged the Court to hold that the Respondent has proved the ingredients of the offences charged; armed robbery and conspiracy, through the confessional statement of the Appellant and that the proof proffered by the Respondent was proof beyond reasonable doubt.

In the instant case the prosecution called 3 witnesses and tendered 5 Exhibits to prove its case. Exhibit 4 is the confessional statement of the Appellant.

The contention of the Appellant under this issue is that the prosecution failed to prove beyond reasonable doubt the offence of criminal conspiracy and armed robbery against the Appellant. It is trite law that proof of conspiracy is generally a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognised in law that in a charge of conspiracy, proof of the actual agreement which is an essential ingredient of the crime is not always easy to come by. In the instant case, the fact that there was no positive evidence of any agreement between the Appellant and the other accused persons he was charged along with to commit the offence is not enough to hold that the prosecution could not establish the charge of conspiracy. See the following cases;
Usufu Vs. State (2007) 3 NWLR (pt.1020) at 94
Oyakhire Vs. State (2006) 15 NWLR (Pt.1001) at 157
Alarape Vs. State (2001) 5 NWLR (Pt.705) at 79
Tanko Vs. State 2008 (supra) at 638.

It is settled that the guilt of an accused person can be proved by;
a. The confessional statement of the accused;
b. Circumstantial evidence, or
c. Evidence of eye witness of the crime.

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

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. See; Saidu vs State (1982) 3 S.C 41. The present case is proved based on confessional statement of the Appellant and other evidences.

The contention of the Appellant under this issue is that the confessional statement of the Appellant did not state that the Appellant participated in the robbery that took place at the house of one Chris Ike Okpeat at Sabon Tasha Kaduna, the trial court ought not to have relied on it in convicting him.

Here it is pertinent to reproduce what the Appellant’s counsel said at page 62 of the record when the prosecution sought to tender through PW3 the Appellant’s confessional statement, he said as follows;
“The accused is denying that he made a statement because the hand writing and the signature are not his. We urged the Court to discountenance it”. (Underline mine)

In its ruling on the above the trial Court overruled the Appellant counsel and admitted the Appellant’s confessional statement in evidence as exhibit 4.
It is trite law that an accused person’s confession is relevant and should not be disregarded merely because he later resiles from it. What is important is the weight the trial judge will attach to such confession and retraction. See the cases of;
Ike Vs The State 2010 5 NWLR (Pt.1186) page 41 at 54-55;
Itule Vs Queen (1961) 2 SCNLR 183.

The tests for determining the truth or weight to attach to a confessional statement are as follows;
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements of fact made in it true as far as can be tested?
4. Was the accused one who had the opportunity to commit the offence?
5. Is the confession possible?
6. Is it consistent with other facts which have been ascertained? See; Amoshima vs State (2009) 4 NCC page 280 at 345.

I have scrutinised the record of this appeal and I am convinced that the trial court was aware of what was required of it by law as itemised above, before it could attach any weight to exhibit 4 and it complied. See; page 93-94 of the printed record. Therefore, I cannot fault the finding of the lower Court that exhibit 4 was voluntarily made by the Appellant and the decision of the lower Court to rely on it, in the light of the various facts which the evidence of PW1, PW2, PW3 and the exhibits established. It is a misconception on the part of the Appellant’s counsel to say that the lower Court relied solely on exhibit 4 in convicting the Appellant.

I also carefully examined exhibit 4 which is contained in page 30-31 of the printed record. I have agreed with the trial Court that exhibit 4 amounts to confessional statement. In my opinion the statement is plausible, direct and positive acknowledgement by the Appellant that he participated in a robbery operation that took place in Television Village, Tirkanai and Sabon Tasha, Kaduna, and in the last operation at Sabon Tasha, Handsets, Money, Dvd, Laptops and Wrappers were stolen. He also disclosed that he was armed with Iron Rods for the purpose of the robbery.

Now the Appellant’s resilation from the statement in open Court has nothing to do with the voluntariness of it. Therefore the admissibility of it was not impugned. The statement is suggestive of the active participation of the Appellant in the execution of the robbery incident. The statement is a confession by the Appellant that he committed the crime even if he was not physically present at the scene of crime eventually.
The learned Appellant’s counsel himself at page 11 (i) of its brief of argument agreed that there was evidence based on the confessional statement of the Appellant that the Appellant and his co-accused took part in the robbery operation at Sabon Tasha.

It is trite law that in order to convict for the offence of armed robbery, the prosecution must prove the following;
1. That there was a robbery
2. That the accused participated in the robbery; and
3. That the accused was armed or was in company of those who were armed with offensive weapons.
Once the prosecution proves the above ingredients beyond reasonable doubt, the Court can safely convict for armed robbery. See; Olayinka vs State 2007 9 NWLR (pt.1040) 561. In the instant case from the Appellant’s confessional statement and the evidence of PW1, PW2 and pw3 the prosecution has proved two of the above ingredients to wit, that there was a robbery and that the accused person participated in the robbery. I agree with Appellant’s counsel that it was wrong for the trial Court to have assumed that the gun recovered from the house of one of the Appellant’s co-accused was the gun used at the scene of robbery when there was no evidence that a gun was seen with the Appellant during the robbery.

I therefore find and hold that the third ingredient i.e possession of firearm at the time of robbery was not established against the Appellant.

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

In the instant case the Appellant’s confessional statement and the prosecution’s evidence drowns the presumption of innocence of the Appellant and the Court is entitled to convict him although there could exist shadows of doubt.
In criminal case, if the evidence adduced by the prosecution is adequate in implicating an accused person as in the instant case, the prosecution would then have succeeded in proving the guilt of the accused beyond reasonable doubt. see the cases of;
Bakare Vs State (1982) 1 NWLR (pt.52) 579;
Tanko Vs State (supra) at 640.

A free and voluntary confession of guilt, direct and positive, and if duly made and satisfactorily proved, is sufficient even without any corroborative evidence so long as the Court is satisfied as to the truth of the confession. See; Adisa vs State (supra) at 505.

The evidence of PW2 and pw3 corroborated the Appellant’s confessional statement (exhibit 4). Also, pw3 under cross examination at page 65 of the printed record clearly stated that PW2 (one of the victims of the robbery) identified some of the stolen items/goods and the accused person (the Appellant) as one of the robbers that carry out the robbery operation in his house at Sabon Tasha, Kaduna. Then what else does the Appellant expect the prosecution to do?

Therefore, considering the totality of evidence before the trial court in the instant case, it is my opinion that there was armed robbery in Sabon Tasha, Kaduna and the Appellant participated in it. Therefore, this issue is resolved in favour of the Respondent.

ISSUE TWO:
“whether the Appellant successfully raised the plea of alibi?” (Grounds 5).

On this issue learned counsel to the Appellant referred the Court to page 48-49 of the printed record. He submitted that it is pertinent to understand the nature of the defence of alibi raised by the Appellant in his defence. He submitted that the Appellant did not say that he was elsewhere at the time of the commission of the alleged criminal acts complained, but that he was already in police custody at the time when the alleged criminal acts were committed. But the trial court dismissed the defence of alibi put up by the Appellant.
He submitted that the trial court by holding that the prosecution witnesses were not confronted with these allegations when they were in the witness box, is manifestly clear that the trial Court did not consider the merits or otherwise of the defence of alibi raised by the Appellant. He further submitted that the defence of alibi must be raised on time to enable the police investigate same, however, from the facts and circumstances of this case, the defence of alibi raised by the Appellant did not require any special and extraordinary investigation by the police.

Learned counsel to the Appellant submitted that in case it is argued that the prosecution would not have had the opportunity of leading evidence in rebuttal of the Appellant’s evidence in this regard, by virtue of the ex-improviso rule, the Respondent was not completely shut down from leading evidence in rebuttal. He argued that purport of the application of the application of the ex-improviso rule is that the Respondent is allowed after it has closed its case to call evidence in rebuttal of a new point raised by the defence at the trial court. He referred this court to Section 289 of the CRIMINAL PROCEDURE ACT CAP 42 LFN 2004.
He also referred the Court to Section 237 (1) (a) of THE CRIMINAL PROCEDURE CODE, and the case of BALA & ANOR VS COMMISSIONER OF POLICE (1973) NNLR 26 and urged the Court to hold that the prosecution in this case ought properly to have led evidence in rebuttal of the Appellant’s evidence in this regard.
He contended that failure of the Respondent to lead evidence in rebuttal of the evidence adduced by the Appellant in this case as well as the failure of the courts below to properly evaluate the defence of alibi put up by the Appellant amounted to a violation of the Appellant’s right to fair hearing. He submitted that the principles of natural justice enjoins a Court to evaluate the evidence adduced by all the parties before giving its judgment will inevitably lead to a denial of the right to fair hearing of a party. He referred the Court to the cases of:
BEKWEALOR VS OBASI (1990) 2 NWLR (PT.131) 231 AT 260;
OLUFOSOYE VS OLURUNNFEMI (1989) 1 NWLR (PT 95) 26.

Learned counsel to the Appellant insisted that where there is a failure by the court to consider the case put up by a party and his evidence thereon as in the instant case, then the party’s fundamental right to fair hearing as guaranteed by Section 36 (10) of the 1999 constitution has been violated. The Court was referred to the case of ONIFADE VS OLAYIWOLA (1990) 7 NWLR (PT 161) 130.
He maintained that the effect of a failure of a Court to consider a particular defence put forward to a case, especially a criminal case is that there has been a failure of justice and the consequences thereof is that such judgment ought to be set aside for its violation of the right to a fair hearing. He referred this honourable Court to the case of OGUNEYE VS THE STATE (1999) 5 NWLR (PT 604) 548 AT 570.

Learned counsel to the Appellant contended that a dispassionate consideration of the plea of alibi raised by the Appellant in this case would necessarily have involved an investigation of the plea of alibi by the police. He maintained that failure on the part of the prosecution to investigate the defence of alibi may cast some doubt on the probability of the case of the prosecution. He referred this honourable Court to the cases:
FATOYINBO VS A-G WESTERN NIG (1966) WNLR 4 AT 6;
OYEWUNMI ADEDEJI VS STATE (1971) ALL NLR 77;
NJOVENS VS STATE (1973) 1 NNLR 76;
SEGUN BALOGUN VS A-G OGUN STATE (2002) 6 NWLR (PT.763) 512 AT 536.

Learned counsel to the Appellant urged this Court to hold that the Appellant has successfully raised the plea of alibi and to set aside the decision of the lower Court as it failed to consider the defence alibi the evidence adduced by the Appellant in his defence before convicting him. He urged the Court to set aside the conviction of the Appellant by the lower court and discharge and acquit the Appellant herein.

Learned counsel to the Respondent in his reply submitted that the Appellant in his testimony on pages 67-68 of the records stated that he was arrested on the 20th August 2009 as against 29th August 2009 when the police arrested him, thereby trying to raise the defence of alibi.
He referred the court to the case of RASAKI vs STATE (2011) 16 NWLR (PT 1273) PG 285 where the Court defined Alibi as follows:
“The word ‘alibi’ is a Latin word which means ‘elsewhere’. It captures the physical impossibility of a person being in two places at the same time…alibi is a complete and radical defence from the charge preferred against him. When it is raised, the defence of alibi means that the accused was elsewhere other than the scene of the crime alleged. It is a defence which is pleaded by a person accused of committing an offence that he was elsewhere at the time the offence was alleged to have been committed and therefore having regard to the time and place, when and where he was alleged to have committed or participated in the commission of the offence, he could not have been present..”

Learned Respondent’s counsel submitted that it is trite law where the defence of alibi is raised, it should be raised timeously so that it may be investigated, proved or disproved by the prosecution. He referred the Court to the cases of
EBENECHI & ANOR VS STATE (2009) 2-3 SC (PT 1) PG 109
ARCHIBONG VS STATE (2006) 14 NWLR (PT 1000) PG 396;
STATE VS AZEEZ (2008) 4 SC PG 188.
He argued that in the matter at hand, the defence of alibi was not raised by the Appellant until during his defence, it is out rightly preposterous as it was raised too late for the Respondent to investigate it and it was when the Appellant saw that he might be convicted by the Court that he raised alibi as an after-thought. He argued further that even when PW.3 gave his evidence as to the date the Appellant was arrested and made his statement, he (PW3) was not challenged under cross examination even after he stated categorically that the Appellant was arrested on the 29th day of August 2009. He referred the Court to pages 61-62 of the records.

Learned counsel to the Respondent submitted that looking at the time the defence of alibi was raised, “can it be said the Appellant have properly raised the defence of alibi?” He answered No! and referred the Court to the cases of;
EMMANUEL EKE VS STATE (2011) 3 NWLR (PT 1235) PG 606
ALOR V STATE (1996) 4 NWLR (PT 445) PG 746;
MUSA VS STATE (1996) 1 NWLR (PT 468) PG 616.

On the Appellant’s contention that the ex-improviso rule should have been applied in other for the Respondent to try and disprove the issue of alibi, learned Respondent’s counsel submitted that the issue of ex-improviso did not even arise here as the defence of alibi was not even properly raised for it to merit proof from the Respondent. He urged this honourable Court to hold that the alibi was a mere after-thought and dismiss same as not properly raised.
Learned counsel to the Respondent urged this Court to resolve his issue in favour of the Respondent and to dismiss this appeal and affirm the decision of the lower Court.

It is trite law that alibi can be raised as a defence in criminal allegation, where evidence placed before the Court clearly demonstrated that the accused person seeks to rely on alibi, that defence cannot be denied to the accused person. Full consideration should be given to whatever plausible defence relied upon by the defence. See; Fatai Vs State 2008 3 NCC pg. 145 at 161-162.
However, whenever an accused person intends to set up a defence of alibi, he should do so at the earliest opportunity during investigation to enable the investigating police officer investigate the defence of alibi. See the case of IKE vs STATE (2010) 5 NWLR (PT.1186) 41.
Where the prosecution fails to investigate the defence of alibi or the Court fails to examine such defence and it is demonstrable that the failure would lead to miscarriage of justice, the conviction would on appeal be quashed.
Also, in order to take advantage of defence of alibi, the accused person must give a detailed particularization of his whereabout on the day of the offence which include not just the specific places where he was, but additionally, the people in whose company he was and what if any transpired at the said time and places. See; Udeodebere & 2 ors Vs The State (2001) 6 SCNJ 54 at 66-67.
In the instance case the Appellant failed to give such comprehensive information to enable the prosecution to do their investigation. For the Appellant to raise the defence of alibi while testifying at his trial is to deliberately deny the prosecution its right and duty to investigate the defence. See the case of Gachi Vs The State (1965) NMLR 333.
It is my opinion that the Appellant’s defence of alibi which he tried to show consist of vague accounts placed before the trial Court as mere make beliefs of plea of that defence which are devoid of materials facts worthy of investigation.

This issue is also resolved in favour of the Respondent.

In conclusion, although the offence of conspiracy and armed robbery have been established against the Appellant, there is no evidence before the trial court that the Appellant inflicted any wound or violence on any person. Also, considering the circumstances of this case where one of the Appellant’s co-accused in his confessional statement claimed that he saw the gun recovered from one of the Appellant’s co-accused persons in the police station and the prosecution also claimed that they have recovered one gun from the accused persons, there is the need for prosecution to tender in evidence the firearms or any offensive weapon used in the armed robbery, which the prosecution failed to do.

Where an accused is charged with one offence, but it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with the particular offence. See; Odeh Vs FRN (2008) 13 NWLR (Pt.1103) pg.1 at 23. In the instance case from the circumstances of the case and the evidence before the trial court, it appears to me that conviction under Section 1 (1) of the Robbery and Firearms (special Provisions) Act, LFN 2004 Cap R11 should have been most proper.

A community reading of the provisions of Section 217 and 218 of the Criminal Procedure Code indicate to me that this Court have power to substitute a conviction for a lesser offence than the offence charged whenever it is appropriate to do so. See also;
ADEYEYE & ANOR VS THE STATE (1968) NMLR 287;
R VS GUMBS (1926) 19 CAR 74.

Therefore, the conviction in the Judgment of Kaduna state High court of justice in suit No:KDH/KA/39C/2009 delivered on 6/6/2011 by G. Kurada J. is set aside and in its place substituted with a conviction under section 1 (1) of the Robbery and Firearms (special Provisions) Act, LFN 2004 Cap R11. The Appellant is accordingly sentence to 21 years imprisonment with effect from the date of his arrest and detention in the year 2008.

DALHATU ADAMU, J.C.A.: I agree.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

Appearances

Abinbola Akeredoru (Mrs) Esq.For Appellant

AND

A. T. Kehinde SAN with P. Agu and N. C. NwaiwuFor Respondent