SODIQ v. STATE
(2020)LCN/15542(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, May 29, 2020
CA/IB/385C/2017
Before Our Lordships:
Helen Moronkeji Ogunwumiju Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
KAZEEM ORIYOMI SODIQ APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
PRINCIPLE OF LAW GOVERNING BURDEN OF PROOF
The law is trite and of general application in all criminal proceedings such as this that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden is squarely on the shoulders of the prosecution and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the Apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the Apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt. 1168) 443 per Tobi JSC thus: –
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus: –
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The learned trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. EBIOWEI TOBI, J.C.A.
PRINCIPLE OF LAW WHEN DOUBT ARISES FROM THE CASE OF THE PROSECUTION
The law is settled on the facts that if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt that will have such effect must be material doubt that is doubt that relates to the ingredient of the offence the accused is charged with. See FRN vs. Abubakar (2019) LPELR-46533 (SC); Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530. This is based on the premise that it is better for 10 guilty people to go free than for 1 innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78. EBIOWEI TOBI, J.C.A.
PRINCIPLE OF LAW GOVERNING THE OFFENCE OF ARMED ROBBERY
In Amos vs. The State (2018) LPELR-44694 (SC), the Apex Court per Bage, JSC at pages 28-30 stated the above ingredients of the offence of armed robbery when it held:
“The ingredients of the offence of armed robbery are that:
(i) That there was a robbery or a series of robberies;
(ii) That each robbery was an armed robbery;
(iii) That appellant was one of those who took part in the robberies.
See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See: AWOSIKA VS THE STATE (2010) 9 NWLR (Pt. 1198) 40 at 71-73.” Per Peter-Odili, JSC. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, JSC, (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi JSC (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi JSC (supra) observed that:
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.” See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118; NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.”
Similarly, in Awosika vs. State (2018) LPELR-44351 (SC), the Apex Court per Sanusi, JSC at pages 27-28 held:
“It is settled law, that in order to establish the offence of armed robbery, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 (as amended) the prosecution must prove the under listed salient ingredients of the offence which include:-
(a) That there was a robbery or series of robbery incident(s)
(b) That the robbers or any of the robbers was armed with offensive weapons
(c) That the accused person(s) was/were the ones responsible of committing the offence
See State vs Adedamola Bello & Ors (1989) 1 CLRN 370; Bozin vs The State (1985) 7 SC (Reprint) 276; Balogun v AG Ogun State (2001) FWLR (Pt.78) 1144 at 1160. The settled law is that in order to obtain conviction on the offence of armed robbery like in any other criminal matters the prosecution must prove the guilt of the accused person beyond reasonable doubt as required and provided by Section 135 of the Evidence Act 2011 (as amended) See Woolmington v DPP (1935) AC 462; Uche v State (2015) 4-5 SC (Pt.11) 140 at 157; State v Oladotun (2011) 5 SC (Pt.11) 133; Sani v. State (2015) 6/7 SC (pt. 11)1 at 17 . It must be emphasized here, that where doubt exists as to the guilt of the accused person, the trial Court must give him the benefit of such doubt and acquit him of the offence charged. Now reflecting on the evidence adduced in this case vis a vis the above-mentioned ingredients, it is incumbent on the prosecution to prove stealing of something capable of being stolen by the accused or any of the accused persons. See Offoing vs The State (1991) 8 NWLR (Pt.103) 118; Okoko v. State (1964) ALL NLR 423; Obue v State (1976) 2 SC 141.”
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt.1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123. EBIOWEI TOBI, J.C.A.
PRINCIPLE OF LAW GOVERNING BURDEN OF PROVE
I had mentioned above that the law as has been settled in a long line of decided cases that in criminal cases, the burden of proving the guilt of the accused person, in this case, the Appellant is on the prosecution, that is the Respondent herein and this burden does not shift. Also, the standard of proof is beyond reasonable doubt. See Nweze vs. State (2017) LPELR-42344 (SC); Chidozie vs. C.O.P (2018) LPELR-43602 (SC); Olaoye vs. State (2018) LPELR-43601 (SC); Kamila vs. State (2018) LPELR-43603 (SC) and Section 135 of the Evidence Act, 2011. The Respondent could use any of the three methods of proving criminal liability to establish its case. These are direct evidence or eye witness, circumstantial evidence, or confessional statement of the accused person. The Supreme Court said this much in Musa vs. State (2019) LPELR-46350 (SC), when it held thus:
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).” EBIOWEI TOBI, J.C.A.
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY AND THE METHODS OF PROVING SAME
I feel obliged to cite one more case which to my mind combined the ingredients of the offence of armed robbery and the methods of proving same. It is the case of this Court. The case is Koku vs. State (2019) LPELR-48121 (CA), where this Court per Ojo, JCA held thus:
“On the ingredients of the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation 2004, it has been judicially settled in a plethora of authorities including the cases of FEDERAL REPUBLIC OF NIGERIA VS. BARMIWAS (2017) 15 NWLR (PT. 1588) PAGE 177 AT 210 PARAGRAPHS C – D; OWOLABI VS. THE STATE (2019) 2 NWLR (PT. 1657) 525 AT 539 PARAGRAPHS A – C; STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 207 AT 213 PARAGRAPHS B – C; UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346 AT 368 – 369 PARAGRAPHS H – B and ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 that to secure a conviction, the prosecution must prove the following: (1) That there was a robbery or series of robbery (2) That the robbery or each of the robbery was an armed robbery (3) That the accused was the robber or one of those who took part in the robbery. Each of the ingredients must co-exist and must be proved beyond reasonable doubt. It is also a settled principle of law that the recognized methods to prove the guilt of an accused person by the prosecution are: (1) Evidence of eye witness(es) (2) Circumstantial evidence or (3) Extra judicial statements made by the accused person. See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 PARAGRAPHS E – F; KOLADE VS. THE STATE (2017) 8 NWLR (PT. 1566) PAGE 60 AT 89 and DIBIA VS. THE STATE (2017) 12 NWLR (PT. 1579) PAGE 196.”
See also Orode vs. State (2018) LPELR-43788 (CA); Adeyemo vs. State (2015) LPELR-24688 (SC); Bille vs. State (2016) LPELR-40832 (SC). EBIOWEI TOBI, J.C.A.
PRNCIPLE OF LAW WHERE THERE IS DOUBT IN THE CASE OF THE PROSECUTION
It is trite law that where there is doubt in the case of the prosecution, such doubt should be resolved in favour of the accused person. See Afolahan vs. State (2017) LPELR-43825 (SC); FRN vs. Abubakar (2019) LPELR-46533 (SC). EBIOWEI TOBI, J.C.A.
EVIDENCE OF AN EYE WITNESS
The law is well settled that the best form of evidence is the evidence of an eye witness. See Akinmoju vs. State (2000) LPELR-351 (SC); Abubakar & Anor vs. State (2016) LPELR-41547 (CA); Akinlolu vs. State (2015) LPELR-25986 (SC). EBIOWEI TOBI, J.C.A.
PRINCIPLE OF LAW GOVERNING IDENTIFICATION PARADE
An identification parade is conducted by the police to ensure that the victim is able to identify the perpetrator of the crime. The essence of an identification parade is to enable an eye witness who never knew the accused to pick him out from the lineup of people including the accused. Since finding the perpetrator of a crime is a major ingredient of a crime, both the police, the ministry of justice must be sure that the person brought to Court is the person who actually is alleged to have committed the offence. In Okiemute vs. The State (2016) 15 NWLR (Pt. 1535) 297, the Apex Court per Okoro, JSC held:
“Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice. Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses who saw when the offence was committed. An accused can also be identified under Section 167 (a) of the Evidence Act 2011.”
If both the police and the ministry of justice or the prosecution makes a mistake on this, the Court must be vigilant to ensure that it is convicting the right person. The Court must ensure mistaken identity is avoided. EBIOWEI TOBI, J.C.A.
GENERAL PRINCIPLE/PROCEDURE OF IDENTIFICATION PARADE
The law is trite as to when an identification parade will be necessary. An identification parade will be necessary under the following circumstances:
1. When the victim of the crime never knew the offender or accused before
2. Where the victim was confronted by the offender for a very short while
3. Where the victim, due to time and circumstance might not have the opportunity of observing the features of the accused person or offender
See Chijoke Ugwu vs. The State (2020) LPLER-49375 (SC).
The law is equally settled that it is not in all cases that identification parade will be necessary. The truth is an identification parade is not full proof of identity of the perpetrator of the offence. It therefore follows that if the identity of the perpetrator of the offence can be ascertained by other means recognized by law, an identification parade will not be necessary. If the victim knew the accused before or had sufficient opportunity to observe the accused when the offence was being committed or the accused was arrested at the scene of the crime or shortly after the offence was committed, identification parade will be unnecessary. I will take a few cases of the Supreme Court in this regard since the Appellant made a big issue of an identification parade. I will start with the case of Okanlawon vs. State (2015) 6-7 S.C (Pt. 1) 115, the Apex Court per Arioowola, JSC thus:
“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with evidence of identification, is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged. See; Patrick Ikemson v. The State (1989) 3 NWLR (Pt. 110) 445; (1981) CLRN 1; Agboola v. The State (supra). EBIOWEI TOBI, J.C.A.
GENERAL PRINCIPLE/PROCEDURE OF IDENTIFICATION PARADE/LINE UP (WAYS OF IDENTIFYING A PERPETRATOR)
Identification parade, otherwise known as “line up”, is a Police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See; Black’s Law Dictionary, 9th Edition page 1014; Agboola Vs State (supra).
Identification parade is ordinarily not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.
Generally, an identification parade would become necessary only in the following situations of visual identification –
(i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence:
(ii) Where the victim was confronted by the offender for a very short time; and
(iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See; R v. Turnbull (1976) 3 ALL ER 549 or (1977) 2B 224 at 228-231; Ikemson v. The State (supra).”
In Ogu vs. C.O.P (2018) 8 NWLR (Pt. 1620) 134, the Supreme Court Kekere – Ekun, JSC held:
“An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly, where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455.”
Peter-Odili, JSC in Nomayo vs. State (2018) LPELR-44729 (SC) at page at page 12-14 held in the same voice thus:
“It has to be reiterated that it is not in all instances that an identification parade is a necessity as in this case at hand where PW1 made a prompt identification of the appellant when he was caught immediately after the incident after the shout of thief, thief early hours of the morning of the following day. The spontaneity of PW1’s reaction on seeing appellant when he was accosted made further identification parade unnecessary. My learned brother Ariwoola JSC had shown the way aptly even for this purpose in the case of Folorunsho Alufohai v The State (2014) LPELR-24215 at pages 25-26 thus: –
“I am not in the slightest doubt that the appellant was properly identified by the victims and there was no need for any formal identification parade any longer.”
In Mathew Orimoloye v The State (1984) 10 SC 138, this Court in case almost in all fours had stated as follows: –
“It is not in every case that parade is necessary to identify culprits. The appellant was identified by PW1 as soon as the latter saw him at the Police Station and even before he was asked to identify him.”
In the same case, this Court went further as follows: –
“It is necessary to point out that the spontaneous reaction towards the recognition of the appellant in respect of the offence committed 6 hours earlier is a more acceptable identification of the appellant than a programmed identification”. EBIOWEI TOBI, J.C.A.
PURPOSE OF AN IDENTIFICATION PARADE
Finally, on this point is the case of Adesina vs. The State (2012) 14 NWLR (Pt. 1321) 429, Adekeye, JSC held:
“I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues –
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or defendant at a glance or longer observation
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. The State (2000) 15 NWLR (pt.697) pg.553.
Okosi v. State (1989) 1 NWLR (pt.100) pg.642.
Alonge v. I.G.P. (1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt.884) pg.439.
Ebri v. State (2004) 11 NWLR (pt.885) pg.589.” EBIOWEI TOBI, J.C.A.
GENERAL PRINCIPLE/PROCEDURE OF ALIBI
The law is that where the accused person raised an alibi, it is the duty of the prosecution to investigate such alibi. As much as the accused person is permitted by law to set up the defence of alibi, it is not to send the prosecution on a wild goose chase. In Olatinwo vs. State (2013) LPELR-1979 (SC), the Court held:
“Generally, if an accused person raises unequivocally a defence of alibi, that is, that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged and gives some facts and circumstances of his whereabout, the prosecution is duty bound to investigate that alibi set up, to verify its truthfulness or otherwise. See: Maikudi Aliyu v. State (2007) All FWLR (Pt.388) 1123 at 1141. In Okosi & Ors v. State (supra), this Court on the duty on the prosecution to investigate an alibi set up by an accused person reinstated that, indeed there is that duty, but opined as follows: “The police are however not expected to go on a wild goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.” See also, Akile Gachi v. State (1965) NMLR 333 at 335, R v. Patrick Moran (1910) 3 Criminal Appeal Report 25. In Eugene Ibe v. The State (1992) NWLR (Pt.244) 642, (1992) LPELR 1386. This Court per Wali, JSC opined as follows: “Although the prosecution has a duty to investigate the defence of alibi where it is raised by an accused person, the law does not impose a duty on them to call as witness or witnesses those interviewed in that regard where they consider such evidence very weak or worthless as against the much stronger evidence that fixes the accused at the scene of the crime. Both PW2 and PW4 gave credible and unshaken evidence that they saw the appellant participating in the armed robbery and whom they claimed to have known before the incident. This fixed the appellant beyond any reasonable doubt at the scene of the crime. After all the duty is on the accused to prove his alibi on the preponderance of probability.” See also; Yanor & Anor v. The State (1965) NMLR 337 Nwosisi v. The State (1976) 6 SC 109.” Alibi is not a defence that the accused, in this case, the Appellant will casually raise and expect the Court to add the blank space or fill the gap. The person raising same is under obligation to give details that the police can specifically cross-check. For the defence to stand, the person raising it must give specific details as the address of the place he was in and anyone who could corroborate his evidence. In this respect, the case of Aiguoreghian & Anor vs. The State (2004) 3 NWLR (Pt. 860) 367, the Apex Court per Edozie, JSC held:
“In the case of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, the Court held that it is not a proper way of raising a defence of alibi for an accused person to merely show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed. He must go further to show that because he was at that place at that time it was impossible for him to have been at the scene of the crime when it was shown to have been committed. Where an accused person sets up the defence of alibi, the mere allegation that he was not at the scene of the offence is not enough. He must give some explanation of where he was and with whom he was or who could know of his presence at that other place at the material time of the commission of the offence. See Salami v. The State (1988) 3 NWLR (Pt.85) 670.” EBIOWEI TOBI, J.C.A.
WHERE THE DEFENCE OF ALIBI WILL FAIL
Having held that the evidence of the Respondent’s witness fixes the Appellant to the scene of the crime, the defence of alibi is abolished. In State vs. Ekanem (2016) LPELR-41304 (SC) the Supreme Court per Aka’ah, JSC held at pages 10-11 thus:
“Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See: Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43.” See Chukwunyere vs. State (2017) LPELR-43725 (SC). EBIOWEI TOBI, J.C.A.
DUTY OF PARTY CLAIMING ALIBI
The law is trite to the effect that where the accused raises an alibi, he must give sufficient details of his alibi. See Akinsuwa vs. State (2019) LPELR 47621 (SC). EBIOWEI TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The appeal before this Court is against the judgment of Hon. Justice A.A. Akinyemi of the High Court of Ogun State sitting in Abeokuta delivered on 2/7/2015 in Charge No. AB/4R/2013 – The State vs. Kazeem Oriyomi Sadiq. The Appellant (then Accused Person at the lower Court) was arraigned and convicted on a one-count charge of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R11) Laws of the Federation of Nigeria, 2004. The brief set of facts the Respondent presented at the lower Court is that on 30/12/2010, in the afternoon, one Elizabeth Abimbola Jolaoso (Complainant at the lower Court) was in her shop with a friend, her salesgirl and her children when the Appellant (Accused person at the lower Court) suddenly entered the shop brandishing a gun, pointed a gun at the complainant and others in the shop with her, ordering her to surrender her phones, money and other valuables with her. She obeyed. The Appellant then ran out of the shop and the complainant (PW1 at the lower Court), together with the person with her in the shop (PW2 at the lower Court) immediately raised an alarm and ran after him. The Appellant was apprehended with the assistance of some students in the neighbourhood at Japo Village after a hot pursuit when he ran into the house of one Alhaji after firing gunshots to deter the persons from pursuing him. The Appellant was afterward handed over to the police at Adigbe Police Station. The PW1 identified the Appellant at the police station as the one who robbed her with a gun as she was able to see his face during the robbery. The Respondent called four witnesses to buttress its case in the lower Court. The Appellant pleaded not guilty to the charge and testified for himself. His case is that of denial and that he was returning from somewhere when he was accosted by some boys calling him a thief. He was subsequently arrested and charged to Court for armed robbery. The lower Court after hearing the case and the address of counsel for both sides gave a considered judgment found on pages 40-51 of the record of appeal and held thus at pages 49-51 of the record (page 10-12 of the judgment):
“… In all, I find that the prosecution has proved the charge of armed robbery against the accused beyond reasonable doubt. I find him guilty as charged. Under the Robbery and Firearms Act, armed robbery carries the death sentence, and this Court has no discretion in the matter.
Hopefully, this will serve as a lesson to other criminally-minded persons, especially the youth. The accused in this case only succeeded in stealing N800.00 and an inexpensive phone from his victims. But he did it by threatening them with a gun. Those uninformed in law might wonder why he has to be so severely punished for stealing such an amount, while others who steal billions are sentenced to lesser punishment. The Court cannot be blamed for that. That is the position of the law of the land and the Courts only interpret and apply the law. Those who have chosen to cultivate a criminal lifestyle must count the cost and be prepared to pay the price before embarking on it. In cases such as this, the law is less-concerned about the value of what was stolen. It is more concerned with the manner of commission of the crime. Violent crimes are viewed very seriously by the law and those, like the accused, who decide to go into it have to pay the price attached to it by society, howsoever severe or harsh.
Having found the accused guilty of armed robbery therefore, I have no choice but to sentence him to death as prescribed by law. Consequently, you, Kazeem Oriyomi Sodiq, are hereby sentenced to death. The sentence of the Court upon you is that you be hanged by the neck until you be dead. May the Lord have mercy on your soul.”
The Appellant dissatisfied with the judgment of the lower Court filed this appeal vide an amended notice of appeal filed on 19/11/2018. The notice of appeal contains four grounds of appeal.
Ground 1:
That the decision of the High Court is unreasonable and cannot be supported having regards to the weight of evidence.
Ground 2:
The Honourable trial Judge erred in law, when he held at page 10-11 of the judgment thus: –
“… In all, I find that the prosecution has proved the charge of armed robbery against the accused beyond reasonable doubt. I find him guilty as charged. Under the Robbery and Firearms Act, armed robbery carries the death sentence, and this Court has no discretion in the matter.”
Ground 3:
The Learned Trial Judge misdirected himself on the facts before him when he held at page 8 of the judgment thus: –
“From the facts in evidence in this case, there is uncontradicted evidence that on the 30th of December, 2010, PW1 and PW2 were victims and eye witness to a robbery attack in their shop. The evidence shows that the robber carried a gun with which he threatened to kill his victims.”
Ground 4:
The Learned Trial Judge misdirected himself when he found the Appellant guilty of the offence of armed robbery and went ahead to sentence him accordingly.”
Both counsel for the Appellant and the Respondent adopted their respective briefs on 28/4/2020 whereupon the Appellant counsel withdrew issue 2 dealing with lack of fair hearing formulated in the Appellant’s brief. The issue 2 is thereby struck out.
The Appellant brief dated and filed 19/11/2018 was settled by A.M. Kotoye Esq. Appellant counsel raised a sole issue for determination in this appeal viz:
Whether the evidence adduced at the trial by the prosecution was sufficient to establish the allegation of armed robbery against the Appellant herein?
On the sole issue for determination, it is the submission of counsel that during the course of the proceedings, PW1 who testified for the Prosecution, under cross-examination admitted that she was not at the scene where the Appellant was apprehended and only identified the Appellant at the police station but did not mention the name of the police station; whether it was at Adigbe or Ekeweran and as such her evidence is not credible enough to be used to convict the Appellant. It is the further submission of counsel that the failure of PW1 evidence to establish the case against the Appellant is further supported and strengthened by the fact that none of the Investigating Police Officers; PW3 and PW4 in their respective testimonies gave any evidence of an identification parade conducted at their respective stations. It is the position of learned counsel that the question which automatically arises from the foregoing is whether PW1 truly saw the Appellant at the time of the commission of the alleged crime to enable her properly identify him at the police station, more so when PW1 and those present in her shop had closed their eyes at the time of the commission of the alleged crime. He referred this Court to lines 1-3 page 27 and lines 17-19 page 29 of the record of appeal. It is the contention of counsel that the only logical and inevitable conclusion arising from the above piece of evidence is that it is impossible for PW1 and PW2 to rightly identify the Appellant as the person that robbed them when they had their eyes closed throughout the robbery incident. It is therefore the submission of learned counsel that the prosecution failed to prove the above important leg of the charge of armed robbery as alleged.
It is also the submission of Appellant’s counsel that the evidence of PW1 and PW2 did not satisfy the third leg of the ingredient of the charge of armed robbery as alleged as it cannot pin the Appellant to the offence. It is the argument of counsel that the finding of the lower Court contained on lines 1-4 of page 48 of the record of appeal is contrary to the evidence of PW3 contained in the last line of page 30 and the first line of page 31 of the record of appeal. Counsel contended that the perpetrator of the crime covered his face and could therefore, not have been properly identified by PW1 and PW2 at the time of the incident as concluded by the trial Court. It is the submission of counsel that from the foregoing, there are material contradictions in the case of the prosecution and which contradictions relate to the identification of the alleged armed robber and thus fundamentally cast a shadow of doubt on the case of the prosecution. On the law relating to the contradiction in the case of the prosecution, counsel relied on Olayinka vs. State (2007) 9 NWLR (Pt. 1040) 561. Counsel also relied on Omogodo vs. State (1981) NSCC Vol. 2 page 119 in stating that even if an accused told several lies during investigation and trial, such lies can never be accepted as proof of his guilt.
It is the position of Appellant counsel that the fact that the Appellant refused to make a statement to the police at Adigbe police station the day he was arrested does not amount to his guilt or the fact that he committed the crime. He placed reliance on State vs. Isah & 2 Ors (2012) 7 SC (Pt. III) 93 @ 107-108. It is further posited by counsel that since the Appellant consistently denied being the perpetrator of the crime as well as not being in possession of the Exhibits tendered, both the prosecution and the lower Court ought to have investigated both the alibi and the source of the items tendered as Exhibits. It was argued by counsel that neither PW3 and PW4 who were the Investigating Police Officers at Adigbe and Eleweran police stations respectively, carried out further investigation on the alibi set up by the Appellant even after he volunteered a statement at the Eleweran police station nor did PW4 directly link the gun and other items tendered in evidence to the Appellant other than that he was told by PW3 that the items were recovered from the Appellant. Relying on Aiguobarueghian & Anor vs. The State 17 NSCQR 442 at 467-468, it is the submission of counsel that the failure of the prosecution to carry out investigation to dislodge the alibi set up by the Appellant in the absence of strong and credible evidence was detrimental and fatal to the case of the prosecution. He also placed reliance on Onafowokan vs. The State (1987) 3 NWLR (Pt. 61) 538 at 553; Ukwunnenyi & Anor vs. The State (1989) 4 NWLR (Pt. 114) 131 at 155-156 to the effect that it was wrong for the trial Court to have brushed aside the alibi set up by the Appellant with a wave of the hand without it being counterbalanced and therefore, neutralized and nullified by stronger, more cogent and convincing evidence in rebuttal.
It is further argued by learned counsel that the prosecution did not while cross-examining the Appellant ask him any question with regards to the source of the Exhibits allegedly recovered from him neither did they discredit the Appellant’s assertion that the said Exhibits were not recovered from him. It is the submission of counsel that the defence of the Appellant, which was not shaken or contradicted under cross-examination has the potential of exonerating the Appellant from the alleged offence and as such, it is the duty of the prosecution and the lower Court to make an inquiry into it before pronouncing on the quilt or otherwise of the Appellant citing Ajayi vs. State (2013) 2-3 SC (Pt. I) 143 at 181; Eke vs. State (2011) 1-2 SC (Pt. II) 219 at 235; Maikudi Aliyu vs. State (2007) All FWLR (Pt. 388) 1123 at 1141.
It is the final submission of counsel that the evidence led by the prosecution during the trial was not cogent and strong enough to justify the conviction of the Appellant by the trial Court. Counsel relied on the cases of David Obue vs. The State (1976) ANLR 139; Ogidi & Ors vs. The State (2005) 1 NCC 163 at 177 in further submitting that the prosecution failed to prove the alleged offence against the Appellant herein with any certainty so as to support the finding of conviction of the Appellant by the trial Court. He therefore, urged this Court to allow the appeal.
The Respondent’s brief dated and filed 27/6/2019 deemed on 2/3/2020 was settled by Olajumoke S. Ogunbode (Mrs.), Chief State Counsel of the Ministry of Justice, Ogun State. The Respondent counsel raised a sole issue for determination viz:
Whether the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt.
On the sole issue for determination, it is the position of counsel that the prosecution in a criminal trial is required to prove his case against the Appellant (Accused person) beyond reasonable doubt proving the elements that constitute the offence of armed robbery relying on Abirifon vs. The State (2013) 9 SCM 1 @ 5; Oforlete vs. The State (2000) FWLR (Pt. 12) 2098-2099; Olayinka vs. The State (2007) 13 NWLR (Pt. 1040) 561 @ 582-583.
It is the submission of counsel that the prosecution witnesses gave evidence that satisfies the burden of proof placed on the prosecution and the learned judge was right to have so held as the evidence of PW1 and PW2 established beyond reasonable doubt that there was a robbery on the 30/12/2010. Counsel, therefore, urged this Court to uphold the decision of the learned trial judge on the premise that the prosecution proved the first ingredient of armed robbery against the Appellant beyond reasonable doubt. Counsel further urged this Court to hold that prosecution also proved the second and third ingredients of armed robbery against the Appellant beyond reasonable doubt.
It is the argument of counsel that an identification parade is not a sine qua non where there is good and cogent evidence linking the Appellant to the crime. He relied on Adebayo vs. The State (2014) 8 SCM 34 at 55. It is further argued by counsel that there was no issue as to the identification of the Appellant as he was arrested at the scene of the crime while attempting to run away after a hot pursuit. Counsel contended that the apprehension of the Appellant was effected by PW1 and PW2 who were the victims and eyewitnesses to the robbery, although they had assistance from student-neighbours and as such, conducting an identification parade subsequently would have served no useful purpose in the circumstance. Learned Counsel cited Ogoala vs. The State (1991) 2 NWLR (Pt. 175) 509; Otti vs. The State (1993) 5 SCNJ 143. It is the further contention of counsel that an identification parade is never conducted for purely cosmetic reasons but limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged relying on Ogoala vs. The State (supra).
On the contention of the Appellant counsel that there are contradictions in the evidence of the prosecution, it is the contention of counsel that assuming without conceding that there was any contradiction at all, it is not so material as to affect the case of the prosecution. He submitted that not all contradictions in the case of the prosecution are fatal to its case and that for contradictions to be fatal, it must attach to the ingredients of the offence for which an Accused person is charged. It is submitted further by counsel that PW3 was not present at the scene of the crime, only PW1 and PW2 were and both PW1 and PW2 gave a vivid narration of all that transpired on that day.
It is stated by counsel that the Appellant counsel is attempting to make a mountain out of a molehill by taking out of context the pronouncement of the learned trial Judge statement in respect of relating the refusal of the Appellant to volunteer a statement and relating it to his guilt. It is the submission of learned counsel that it cannot by any stretch of imagination be suggested that the learned trial judge concluded on the guilt of the Appellant due to his refusal to make a statement at Adigbe police station but based on the credible evidence provided by the prosecution in proof of its case.
On the issue of alibi, it is the submission of counsel that the position of the law is that alibi as a defence should be raised at the earliest opportunity and that opportunity is in the interrogation room. It is argued by counsel that there was neither any alibi raised in the Appellant’s extra-judicial statement admitted as Exhibit 5 nor was any raised in his testimony in Court.
In conclusion, the Respondent urged this Court to dismiss the appeal in its entirety as the Respondent has proved the guilt of the Appellant beyond reasonable doubt.
I have read through the notice of appeal containing the grounds of appeal filed by the Appellant and the briefs filed by the respective counsel to both parties. Counsel have each formulated one issue for determination in this appeal. I make bold to say that the issue formulated by both counsel are the same in all material respect except for the way they were couched. Any of the issues formulated I adopt, will adequately address the main issue this appeal is to address. I will adopt the issue as formulated by the Appellant, which is herein reproduced for ease of reference:
Whether the evidence adduced at the trial by the prosecution was sufficient to establish the allegation of armed robbery against the Appellant herein?
To answer this question, which is the ultimate question in this appeal, I am inclined to take a little excursion to some general and trite legal principles which applicable will assist this Court towards deciding this appeal. The law is trite and of general application in all criminal proceedings such as this that the burden of proof rests heavily on the prosecution to prove the guilt of the accused person. This burden is squarely on the shoulders of the prosecution and it does not shift. See Almu vs. State (2009) 10 NWLR (Pt. 1148) 31; Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369. In Esangbedo vs. State (1989) 4 NWLR (Pt. 113) 57, the Apex Court held:
“The expression “burden of proof” in criminal cases is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts. This is called the persuasive, ultimate or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt.”
The standard of proof required to discharge the burden is proof beyond reasonable doubt. This does not mean all shadow of doubt or beyond all reasonable doubt, as proof in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, the proof requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the Apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt. 1168) 443 per Tobi JSC thus: –
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus: –
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The learned trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable must bear in mind that he will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt. This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with.
The law is settled on the facts that if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt that will have such effect must be material doubt that is doubt that relates to the ingredient of the offence the accused is charged with. See FRN vs. Abubakar (2019) LPELR-46533 (SC); Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530. This is based on the premise that it is better for 10 guilty people to go free than for 1 innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78.
Before I turn this into a class on criminal law, it will be necessary at this stage to address the specific issues raised in this appeal and the addresses by counsel in the various briefs. The Appellant was charged for armed robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004. The ingredients of the offence are stated therein in the law under which the Appellant is charged and in a line of cases. For the offence of armed robbery, the Respondent in the lower Court must prove the three ingredients of the offence. These are:
(i) That there was a robbery
(ii) That the robbery was armed robbery
(iii) That the accused (Appellant) was the robber or one of the robbers.
In Amos vs. The State (2018) LPELR-44694 (SC), the Apex Court per Bage, JSC at pages 28-30 stated the above ingredients of the offence of armed robbery when it held:
“The ingredients of the offence of armed robbery are that:
(i) That there was a robbery or a series of robberies;
(ii) That each robbery was an armed robbery;
(iii) That appellant was one of those who took part in the robberies.
See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See: AWOSIKA VS THE STATE (2010) 9 NWLR (Pt. 1198) 40 at 71-73.” Per Peter-Odili, JSC. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, JSC, (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi JSC (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi JSC (supra) observed that:
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.” See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118; NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.”
Similarly, in Awosika vs. State (2018) LPELR-44351 (SC), the Apex Court per Sanusi, JSC at pages 27-28 held:
“It is settled law, that in order to establish the offence of armed robbery, contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation of Nigeria 1990 (as amended) the prosecution must prove the under listed salient ingredients of the offence which include:-
(a) That there was a robbery or series of robbery incident(s)
(b) That the robbers or any of the robbers was armed with offensive weapons
(c) That the accused person(s) was/were the ones responsible of committing the offence
See State vs Adedamola Bello & Ors (1989) 1 CLRN 370; Bozin vs The State (1985) 7 SC (Reprint) 276; Balogun v AG Ogun State (2001) FWLR (Pt.78) 1144 at 1160. The settled law is that in order to obtain conviction on the offence of armed robbery like in any other criminal matters the prosecution must prove the guilt of the accused person beyond reasonable doubt as required and provided by Section 135 of the Evidence Act 2011 (as amended) See Woolmington v DPP (1935) AC 462; Uche v State (2015) 4-5 SC (Pt.11) 140 at 157; State v Oladotun (2011) 5 SC (Pt.11) 133; Sani v. State (2015) 6/7 SC (pt. 11)1 at 17 . It must be emphasized here, that where doubt exists as to the guilt of the accused person, the trial Court must give him the benefit of such doubt and acquit him of the offence charged. Now reflecting on the evidence adduced in this case vis a vis the above-mentioned ingredients, it is incumbent on the prosecution to prove stealing of something capable of being stolen by the accused or any of the accused persons. See Offoing vs The State (1991) 8 NWLR (Pt.103) 118; Okoko v. State (1964) ALL NLR 423; Obue v State (1976) 2 SC 141.”
See Kareem Olatinwo vs. The State (2013) 8 NWLR (Pt. 1355) 126; Emeka vs. State (2014) 6-7 S.C (Pt.1) 64; Darlington Eze vs. FRN (2018) ALL FWLR (Pt. 923) 123.
The case of the Appellant in this appeal is that the Respondent has not proved the above ingredients of the offence of armed robbery beyond reasonable doubt as there are material inconsistencies in the case of the Respondent which the lower Court ought to have considered in resolving that the Respondent had not proved its case against the Appellant and as such find the Appellant not guilty. I had mentioned above that the law as has been settled in a long line of decided cases that in criminal cases, the burden of proving the guilt of the accused person, in this case, the Appellant is on the prosecution, that is the Respondent herein and this burden does not shift. Also, the standard of proof is beyond reasonable doubt. See Nweze vs. State (2017) LPELR-42344 (SC); Chidozie vs. C.O.P (2018) LPELR-43602 (SC); Olaoye vs. State (2018) LPELR-43601 (SC); Kamila vs. State (2018) LPELR-43603 (SC) and Section 135 of the Evidence Act, 2011. The Respondent could use any of the three methods of proving criminal liability to establish its case. These are direct evidence or eye witness, circumstantial evidence, or confessional statement of the accused person. The Supreme Court said this much in Musa vs. State (2019) LPELR-46350 (SC), when it held thus:
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel are right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).”
I feel obliged to cite one more case which to my mind combined the ingredients of the offence of armed robbery and the methods of proving same. It is the case of this Court. The case is Koku vs. State (2019) LPELR-48121 (CA), where this Court per Ojo, JCA held thus:
“On the ingredients of the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap R11, Laws of the Federation 2004, it has been judicially settled in a plethora of authorities including the cases of FEDERAL REPUBLIC OF NIGERIA VS. BARMIWAS (2017) 15 NWLR (PT. 1588) PAGE 177 AT 210 PARAGRAPHS C – D; OWOLABI VS. THE STATE (2019) 2 NWLR (PT. 1657) 525 AT 539 PARAGRAPHS A – C; STATE VS. BALOGUN (2018) 10 NWLR (PT. 1627) 207 AT 213 PARAGRAPHS B – C; UGBOJI VS. THE STATE (2018) 10 NWLR (PT. 1627) 346 AT 368 – 369 PARAGRAPHS H – B and ADEOYE VS. THE STATE (1999) 6 NWLR (PT. 605) 74 that to secure a conviction, the prosecution must prove the following: (1) That there was a robbery or series of robbery (2) That the robbery or each of the robbery was an armed robbery (3) That the accused was the robber or one of those who took part in the robbery. Each of the ingredients must co-exist and must be proved beyond reasonable doubt. It is also a settled principle of law that the recognized methods to prove the guilt of an accused person by the prosecution are: (1) Evidence of eye witness(es) (2) Circumstantial evidence or (3) Extra judicial statements made by the accused person. See MUSA VS. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 PARAGRAPHS E – F; KOLADE VS. THE STATE (2017) 8 NWLR (PT. 1566) PAGE 60 AT 89 and DIBIA VS. THE STATE (2017) 12 NWLR (PT. 1579) PAGE 196.”
See also Orode vs. State (2018) LPELR-43788 (CA); Adeyemo vs. State (2015) LPELR-24688 (SC); Bille vs. State (2016) LPELR-40832 (SC).
From the foregoing cases, it, therefore, means that for the Respondent to successfully secure a conviction against the Appellant, he must prove that there was a robbery or series of robberies, that the robbery was an armed robbery and that the accused was the robber or took part in the robbery. The ingredients are mutually inclusive, that is, the Respondent must prove all the ingredients against the Appellant. Where he fails to prove one or more of the ingredients of the offence, the doubt will be resolved in favour of the Appellant.
It is trite law that where there is doubt in the case of the prosecution, such doubt should be resolved in favour of the accused person. See Afolahan vs. State (2017) LPELR-43825 (SC); FRN vs. Abubakar (2019) LPELR-46533 (SC).
From the record of appeal and the judgment, it is clear that the method the Respondent relied on to prove the guilt of the Appellant was an eye witness account or what is referred to as direct evidence. The Lower Court based the conviction more on the evidence of PW1 and PW2 who were eyewitnesses of the crime and victims of the robbery. At this point, it becomes expedient that I restate the facts of the case for a better understanding and ease of reference and proper flow of the judgment. Even if it appears repetitive, it will cost no harm. On the 30/12/2010, at noonday, one Elizabeth Abimbola Jolaoso (PW1) was in her shop with a friend, her salesgirl and her children when the Appellant (accused person) suddenly entered the shop brandishing a gun, pointed it at her and ordered her to surrender her phones, money and other valuables which she did. The Appellant then ran out of the shop and the complainant, together with the person with her in the shop immediately raised an alarm and they with the assistance of some students in the neighbourhood were able to apprehend the Appellant at Japo Village after a hot pursuit when he ran into the house of one Alhaji after firing gunshots to deter the persons pursuing him. The Appellant was afterward handed over to the police at Adigbe Police Station.
From the evidence before the lower Court, and the record before this Court, it is not in dispute that there was a robbery and that the robbery was armed robbery. What is in contention in the appeal before this Court is whether the Respondent was able to prove at the Lower Court that the Appellant was the one who carried out the armed robbery? It is the contention of the Appellant counsel that from the testimony of the witnesses called by the Respondent, the Respondent was not able to fix the Appellant as the one who committed the offence and as such, the lower Court should have resolved such doubt in favour of the Appellant. In addition to that, the inability of the prosecution to conduct an identification parade and investigate the Alibi of the Appellant was fatal to the case of the Respondent. The Appellant also alleged that there are contradictions in the evidence of the Respondent’s witnesses. If this is true, the conviction will be quashed. On the other hand, the prosecution contends that from the testimonies of the witnesses called, the Appellant was identified as the one who committed the offence and since he was arrested at the scene of the crime, identification parade is not necessary and that the alibi was not disclosed early enough to enable the police to investigate. Both counsel have stood their grounds and made their respective positions known but both of them cannot be correct. One has to be correct and the other wrong. From all facts and indications, the sole question to be answered in this appeal is, was the Respondent able to produce sufficient and material evidence before the lower Court for the lower Court to reach the conclusion that the Appellant was the one who committed the offence? This is the question this Court is called to answer. Where this Court holds that the Respondent did not prove this ingredient of the offence of armed robbery, it will spell doom for the Respondent’s case, as this will amount to reversing the decision of the lower Court and the Appellant will be found not guilty.
At the lower Court, the Respondent called four witnesses in proof of its case. Amongst the four witnesses, two of the witnesses were witnesses of the crime and identified the Appellant as the one who committed the offence. The law is well settled that the best form of evidence is the evidence of an eye witness. See Akinmoju vs. State (2000) LPELR-351 (SC); Abubakar & Anor vs. State (2016) LPELR-41547 (CA); Akinlolu vs. State (2015) LPELR-25986 (SC). This, no doubt was the only means the Respondent employed in proving the offence of armed robbery against the Appellant.
The Appellant counsel has argued that the PW1 and PW2 at the Lower Court could not have recognized or identified the Appellant as the perpetrator of the crime as they were either lying down or closing their eyes, at the time of the commission of the offence.
The Lower Court after hearing the testimonies of the witnesses and the submissions of counsel held on page 49 of the record of appeal (page 10 of the judgment) as follows:
“Both PW1 and PW2 were victims and eye witnesses in this case. At the point of arrest, PW2 positively and unequivocally identified the accused and at the Police Station, PW1 also instantly identified him. Their evidence was straight forward, cogent and unshaken under cross examination. The phone set of the PW1 stolen by the accused was recovered when he threw it and the now empty purse down as he ran away from the scene under hot pursuit. I believe the evidence of PW1 and PW2 as credible…”
The above finding of the Lower Court must correspond with the evidence otherwise, the law allows me to interfere with the finding as being perverse but if I cannot see it as perverse finding, I cannot interfere with the above finding. See The State vs. Sani (2018) LPELR-43598; Omomeji & Ors vs. Kolawole & Ors (2008) 4-5 S.C (Pt. II) 158; Odom & Ors vs. PDP & Ors (2015) ALL FWLR (Pt. 773) 1962.
I have gone through the gamut of the whole proceedings at the Lower Court and for emphasis I will make reference to some relevant sections of the proceedings. To this end, the testimonies of PW1, PW2 and PW3 are very instructive. On page 26-27 of the record of appeal, during examination in chief, the PW1 testified thus:
“At first, I was shocked and could say nothing, later I came to my senses, and since he pointed the gun at me, I gave him my purse containing N800.00, he collected it and turned round and started running away. We were still closing our eyes, as he ordered us to do. We then opened our eyes and started shouting….” Underlined for emphasis.
If the evidence ended here, it would have been difficult to hold that the PW1 could have properly seen the Appellant. It however did not end here as Appellant counsel during cross-examination elicited evidence which in my mind was more direct on the subject of identification.
During cross-examination on page 27 of the record of appeal, the PW1 testified thus:
“I am very sure that it was the accused person who robbed me that day. I was facing him when he pointed the gun at me – others were facing down.” Underlined for emphasis.
On page 28 of the records, the PW1 under cross-examination said after the arrest of the Appellant she went to the police and immediately identified him as the person who robbed her.
Reproduced above is the testimony of the PW1 in the lower Court that is relevant. From the testimony, it is clear that at some point during the robbery there was eye contact between her and the Appellant which afforded her the opportunity to recognize him when he was arrested the same day, a few hours later when the whole incident was still fresh in her mind.
Going further, on page 29 of the record of appeal, PW2 in her examination in chief stated:
“… I knew the accused. On 30th December, 2010, we were sitting down in the shop – suddenly this accuse entered our shop, pointed a fun (sic) at us and ordered us to lie down face down. I immediately face down, but our mummy did not face down. As I laid face down, I was peeping at him with the side of my eyes…” Underlined for emphasis
During cross-examination, PW2 on page 30 of the record of appeal stated thus:
“…Even though I was facing down, I could see the face of the accused, I recognize him very well. When I faced the ground, I did not close my eyes, and I could still see the accused face, because, I was looking at him side way…” Underlined for emphasis
The evidence of PW2 corroborated PW1 evidence of the eye contact PW1 made with the Appellant during the period of the robbery. The PW2 gave evidence of how she recognized the Appellant. She was peeping at him all the time. She chased after him, and she identified him to the people who arrested him. There is nothing on the side of the Appellant challenging this damaging evidence on the identity of the Appellant as the robber.
The evidence of PW3 while stating the report made to the police by the PW1 said the PW1 said the Appellant was wearing something which he used to cover his face. Can this evidence destroy the clear evidence of identification by PW1 and PW2? I do not think so as the statement of PW1 was not tendered to verify what her statement was. The evidence of PW3 which appears to say something slightly different could not vitiate the evidence of identification by the PW1 and PW2.
From the various sections of the proceedings of the Lower Court reproduced above, I do not agree that there are material contradictions in the Respondent’s case at the Lower Court which could affect the conviction of the Appellant more so when the Appellant was chased immediately after the commission of the offence, apprehended and identified by the victims of the armed robbery. This is a piece of tight evidence. I find that even though there is a slight inconsistency in the testimonies of the witnesses, there is overwhelming evidence before the Lower Court that fixes the Appellant as the one who committed the offence.
The Appellant had argued that the inability of the Respondent to give evidence of an identification parade is fatal to the Respondent’s case at the Lower Court. An identification parade is conducted by the police to ensure that the victim is able to identify the perpetrator of the crime. The essence of an identification parade is to enable an eye witness who never knew the accused to pick him out from the line up of people including the accused. Since finding the perpetrator of a crime is a major ingredient of a crime, both the police, the ministry of justice must be sure that the person brought to Court is the person who actually is alleged to have committed the offence. In Okiemute vs. The State (2016) 15 NWLR (Pt. 1535) 297, the Apex Court per Okoro, JSC held:
“Issue of identification of an accused person is very crucial in criminal proceedings, and the real purpose of identification is to ensure that there is no miscarriage of justice. Identification of an accused person can be done by the victim of the crime if he is alive or by witnesses who saw when the offence was committed. An accused can also be identified under Section 167 (a) of the Evidence Act 2011.”
If both the police and the ministry of justice or the prosecution makes a mistake on this, the Court must be vigilant to ensure that it is convicting the right person. The Court must ensure mistaken identity is avoided.
The law is trite as to when an identification parade will be necessary. An identification parade will be necessary under the following circumstances:
1. When the victim of the crime never knew the offender or accused before
2. Where the victim was confronted by the offender for a very short while
3. Where the victim, due to time and circumstance might not have the opportunity of observing the features of the accused person or offender
See Chijoke Ugwu vs. The State (2020) LPLER-49375 (SC).
The law is equally settled that it is not in all cases that identification parade will be necessary. The truth is an identification parade is not full proof of identity of the perpetrator of the offence. It therefore follows that if the identity of the perpetrator of the offence can be ascertained by other means recognized by law, an identification parade will not be necessary. If the victim knew the accused before or had sufficient opportunity to observe the accused when the offence was being committed or the accused was arrested at the scene of the crime or shortly after the offence was committed, identification parade will be unnecessary. I will take a few cases of the Supreme Court in this regard since the Appellant made a big issue of an identification parade. I will start with the case of Okanlawon vs. State (2015) 6-7 S.C (Pt. 1) 115, the Apex Court per Arioowola, JSC thus:
“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial Court is confronted with evidence of identification, is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was actually the person who committed the offence with which he is charged. See; Patrick Ikemson v. The State (1989) 3 NWLR (Pt. 110) 445; (1981) CLRN 1; Agboola v. The State (supra).
Identification parade, otherwise known as “line up”, is a Police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See; Black’s Law Dictionary, 9th Edition page 1014; Agboola Vs State (supra).
Identification parade is ordinarily not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.
Generally, an identification parade would become necessary only in the following situations of visual identification –
(i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence:
(ii) Where the victim was confronted by the offender for a very short time; and
(iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
See; R v. Turnbull (1976) 3 ALL ER 549 or (1977) 2B 224 at 228-231; Ikemson v. The State (supra).”
In Ogu vs. C.O.P (2018) 8 NWLR (Pt. 1620) 134, the Supreme Court Kekere – Ekun, JSC held:
“An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly, where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455.”
Peter-Odili, JSC in Nomayo vs. State (2018) LPELR-44729 (SC) at page at page 12-14 held in the same voice thus:
“It has to be reiterated that it is not in all instances that an identification parade is a necessity as in this case at hand where PW1 made a prompt identification of the appellant when he was caught immediately after the incident after the shout of thief, thief early hours of the morning of the following day. The spontaneity of PW1’s reaction on seeing appellant when he was accosted made further identification parade unnecessary. My learned brother Ariwoola JSC had shown the way aptly even for this purpose in the case of Folorunsho Alufohai v The State (2014) LPELR-24215 at pages 25-26 thus: –
“I am not in the slightest doubt that the appellant was properly identified by the victims and there was no need for any formal identification parade any longer.”
In Mathew Orimoloye v The State (1984) 10 SC 138, this Court in case almost in all fours had stated as follows: –
“It is not in every case that parade is necessary to identify culprits. The appellant was identified by PW1 as soon as the latter saw him at the Police Station and even before he was asked to identify him.”
In the same case, this Court went further as follows: –
“It is necessary to point out that the spontaneous reaction towards the recognition of the appellant in respect of the offence committed 6 hours earlier is a more acceptable identification of the appellant than a programmed identification”.
“In the same case at hand, it was clear from the evidence that the victims – PW3 and her late husband did not go to the Police Station for purpose of identifying the appellant. They merely went to lodge complaint to the police of the attack on their family. In the result, the appellant was properly identified by PW1 and PW3, hence identification parade was rightly dispensed with by the Police. It was not necessary any longer.”
The case of Alufohai v State (Supra) was a reiteration of earlier decisions of this Court such as Mathew Orimoloye v The State (1984) 10 SC 134 at 139-140 per ESO JSC; Olabowale Aderemi v The State (1984) 11 SC 56.”
Finally, on this point is the case of Adesina vs. The State (2012) 14 NWLR (Pt. 1321) 429, Adekeye, JSC held:
“I must explain that the purpose of an identification parade in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that an identification parade is necessary. Where the prosecution witness has knowledge of the accused person, identification parade is not necessary. In order to ascribe any values to the evidence of an eyewitness identification of a criminal, the Court in guiding against cases of mistaken identity must meticulously consider the following issues –
1. Circumstances in which the eyewitness saw the suspect; was it in difficult conditions
2. The length of the time the witness saw the suspect or defendant at a glance or longer observation
3. The opportunity of close observation.
4. Previous contact between the two parties.
5. The lighting conditions.
Eyisi v. The State (2000) 15 NWLR (pt.697) pg.553.
Okosi v. State (1989) 1 NWLR (pt.100) pg.642.
Alonge v. I.G.P. (1959) SCNLR pg.156.
Ikemson v. State (1989) 3 NWLR (pt.110) pg. 455.
Ukorah v. State (1977) 4 SC pg.167.
Ukpabi v. State (2004) 11 NWLR (pt.884) pg.439.
Ebri v. State (2004) 11 NWLR (pt.885) pg.589.”
I have gone this whole length to disabuse the mind of counsel to the Appellant that identification parade is not necessary for all times and indeed taking into cognizance the evidence before the Lower Court, identification parade is not necessary as the Appellant was arrested shortly after the commission of the offence and there was some eye contact between the PW1 and the Appellant and there was some close observation of the Appellant by the PW2. It was also during the day time. The Appellant counsel above all did not do a good job in trying to challenge the evidence of the Respondent by PW1 and PW2 by using skillfully the art of cross-examination.
The Appellant has argued that the Respondent failed to investigate his alibi and the source of the gun and the other exhibit which were tendered as evidence against him when same was denied. The law is that where the accused person raised an alibi, it is the duty of the prosecution to investigate such alibi. As much as the accused person is permitted by law to set up the defence of alibi, it is not to send the prosecution on a wild goose chase. In Olatinwo vs. State (2013) LPELR-1979 (SC), the Court held:
“Generally, if an accused person raises unequivocally a defence of alibi, that is, that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged and gives some facts and circumstances of his whereabout, the prosecution is duty bound to investigate that alibi set up, to verify its truthfulness or otherwise. See: Maikudi Aliyu v. State (2007) All FWLR (Pt.388) 1123 at 1141. In Okosi & Ors v. State (supra), this Court on the duty on the prosecution to investigate an alibi set up by an accused person reinstated that, indeed there is that duty, but opined as follows: “The police are however not expected to go on a wild goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.” See also, Akile Gachi v. State (1965) NMLR 333 at 335, R v. Patrick Moran (1910) 3 Criminal Appeal Report 25. In Eugene Ibe v. The State (1992) NWLR (Pt.244) 642, (1992) LPELR 1386. This Court per Wali, JSC opined as follows: “Although the prosecution has a duty to investigate the defence of alibi where it is raised by an accused person, the law does not impose a duty on them to call as witness or witnesses those interviewed in that regard where they consider such evidence very weak or worthless as against the much stronger evidence that fixes the accused at the scene of the crime. Both PW2 and PW4 gave credible and unshaken evidence that they saw the appellant participating in the armed robbery and whom they claimed to have known before the incident. This fixed the appellant beyond any reasonable doubt at the scene of the crime. After all the duty is on the accused to prove his alibi on the preponderance of probability.” See also; Yanor & Anor v. The State (1965) NMLR 337 Nwosisi v. The State (1976) 6 SC 109.” Alibi is not a defence that the accused, in this case, the Appellant will casually raise and expect the Court to add the blank space or fill the gap. The person raising same is under obligation to give details that the police can specifically cross-check. For the defence to stand, the person raising it must give specific details as the address of the place he was in and anyone who could corroborate his evidence. In this respect, the case of Aiguoreghian & Anor vs. The State (2004) 3 NWLR (Pt. 860) 367, the Apex Court per Edozie, JSC held:
“In the case of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, the Court held that it is not a proper way of raising a defence of alibi for an accused person to merely show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed. He must go further to show that because he was at that place at that time it was impossible for him to have been at the scene of the crime when it was shown to have been committed. Where an accused person sets up the defence of alibi, the mere allegation that he was not at the scene of the offence is not enough. He must give some explanation of where he was and with whom he was or who could know of his presence at that other place at the material time of the commission of the offence. See Salami v. The State (1988) 3 NWLR (Pt.85) 670.”
Having held that the evidence of the Respondent’s witness fixes the Appellant to the scene of the crime, the defence of alibi is abolished. In State vs. Ekanem (2016) LPELR-41304 (SC) the Supreme Court per Aka’ah, JSC held at pages 10-11 thus:
“Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See: Ebenehi v. The State (2009) 6 NWLR (Pt. 1138) 431 at 448; Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43.” See Chukwunyere vs. State (2017) LPELR-43725 (SC). The Appellant’s defence of Alibi will fail as he did not place sufficient materials and details to enable the Respondent to investigate same. To my mind, that is nothing short of sending the Respondent on a wild goose chase. The law is trite to the effect that where the accused raises an alibi, he must give sufficient details of his alibi. See Akinsuwa vs. State (2019) LPELR 47621 (SC). That apart, looking at the Appellant’s statement, the Alibi was for 23/12/2010 which is not the date the offence was committed. The offence was committed on 30/12/2010. The sole issue I resolve in favour of the Respondent.
In the circumstance and having made the finding above, I have no difficulty in holding that the Respondent proved its case against the Appellant in the Lower Court beyond reasonable doubt. I have come to the conclusion that the appeal lacks merit and it is dismissed. The decision of the lower Court in Charge NO. AB/4R/2013 delivered by Hon. Justice A.A. Akinyemi of the High Court of Justice, Ogun State, Abeokuta on 2/7/2015 is hereby affirmed and upheld.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother EBIOWEI TOBI JCA, and I agree with His Lordships reasoning and conclusion that the appeal should be dismissed as lacking in merit. My Lord considered all the complaints exhaustively and I have nothing useful to add.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in entire agreement with the judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.
Appearances:
A.M. KOTOYE ESQ., For Appellant(s)
O.S. OGUNBODE ESQ., For Respondent(s)