TAJUDEEN v. STATE (2022)

TAJUDEEN v. STATE

(2022)LCN/16426(CA)

In The Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/IB/271C/2021

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

OLAYIWOLA TAJUDEEN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

In any criminal case, the burden of proof rest with the prosecution and is static, the standard is proof beyond reasonable doubt. See MINDI V. STATE (2020) LPELR-52897(SC) and SHAHINUL V. FRN (2018) LPELR-44528(CA) wherein the Court held thusly:
“Our criminal justice system is adversarial and the prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt.” Per OGAKWU, J.C.A in
The only exception is evidential burden which the apex Court in NWAVU & ORS V. OKOYE & ORS (2008) LPELR-2116(SC) explained as follows:

THE POSITION OF LAW ON THE BEST TIME TO RAISE THE DEFENCE OF ALIBI

The Appellant did not give relevant particulars to the police at the earliest opportunity to allow the Investigating Police officers investigate the alibi, see SANI V. STATE (2015) LPELR-24818(SC) wherein the apex Court held thusly:
“For a defence of alibi to avail an accused person, it must be raised timeously and specifically, this is because by nature, the defence presupposes that the accused does not only claim that he never committed the offence alleged, but also that he was not at all at the scene of the crime or within the vicinity. The law is trite and well established therefore that in an offence requiring physical presence, an alibi set up by an accused person must be investigated thoroughly by the police. It must be definite as to time, place and the persons who know about the accused’s whereabout. Once it is raised by the accused, the onus rests on the prosecution to disprove it. See Yanor v. State (1965) NWLR 337 and Chukwu V. State (1996) 7 NWLR (Pt.463) 686 at 702.” Per OGUNBIYI, J.S.C. PER NIMPAR, J.C.A.

WAYS PROSECUTION CAN PROVE THE OFFENCE OF AN ACCUSED PERSON

The prosecution has 3 settled ways it can prove any allegation it levels against any Defendant, they were listed in the case of ADEYEMO V. STATE (2015) LPELR-24688(SC) wherein the apex Court held thusly:
“It is settled that the three ways of proving the commission of a crime are: by direct evidence, by confessional statement of the accused and by circumstantial evidence.” Per OGUNBIYI, J.S.C.
It could be any of the ways or a combination of any two. In this case there were eye witness accounts and circumstantial evidence upon which the lower Court found the Appellant guilty of the offence of robbery. PER NIMPAR, J.C.A.

THE MEANING OF A PERVERSE DECISION

Perverse decision means is a decision which ignores the evidence before the Court and which results in or amounts to a miscarriage of justice, see ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2.) 360 AT 375 and FBN PLC V. OZOKWERE (2013) LPELR-21897(SC). Instances where a decision of a Court will be termed perverse were given in the cases of YARO V. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT.1063) 333 AT 374 AND OLANIYAN & ORS V. FATOKI (2013) LPELR – 20936 (SC) and ODOM & ORS V. PDP & ORS (2015) LPELR-24351(SC) as follows:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of Justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertained facts.” PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE R. B. AKINTOLA on the 7th day of July, 2021 in Suit No.: HOG/IC/2010 wherein the lower Court discharged the Appellant on Count One, Three and Four of the amended charge and convicted him on count two to wit armed robbery and sentenced him to death. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated on the 30th day of July, 2021 setting out 5 grounds of appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. On Sunday 16th day of December, 2007 around 08:30pm, the Appellant herein and two other persons broke into the premises of Mr. and Mrs. Shodipo (PW1 and PW2) at Olugbon Area, Ogbomoso, Oyo State to steal therefrom. PW1 and PW2 returned from Church on the fateful day when they met their apartment scattered and upon enquires from their neighbours they were told that the Appellant and one other person who are friends to one Ezekiel Aremu broke into their apartment to steal therefrom.

Thereafter, PW1 reported the incident to Sabo Police Station (Ogbomoso) the following day Seun Ajakaye one of the members of the gang was arrested and detained. Seun Ajakaye later confessed to the commission of the crime in company of the Appellant and when the Appellant was called on phone to report to the Station, he claimed to have travelled to the Eastern part of the Country. PW1 was later informed that Seun Ajakaye had escaped from custody.

Again, on the 23rd day of December, 2007, at about 7:30pm PW1, PW2 and some family members were parking their belonging to move to another house when suddenly, the Appellant and two others, armed with short locally made guns invaded the their apartment. PW1 testified that one of the gang of armed robbers, Seun Ajakaye pointed at her saying “You wanted to arrest a thief, the end has come today”. The gang of armed robbers commanded their victims to lie on their faces while the Appellant entered PW1’s room and demanded for the handsets being sold by PW2 and some other belongings. PW1 and PW2 cooperated with this gang of armed robbers and they were robbed of Phones (72 pieces), Laptop, DVD Player, PW1’s earrings and the sum of N350,000.00 (Three Hundred and Fifty Thousand Naira). PW1 and PW2 lodged a complaint at Owode Police Station, Ogbomoso, Oyo State. The Appellant was arrested at a football viewing Station, Seun Ajakaye was also arrested in Ogbomoso while Ezekiel Aremu was also arrested in Ogbomoso High School Area. The Appellant together with his co-defendants were eventually charged and arraigned at the lower Court on four Counts charge of Conspiracy to commit armed robbery, armed robbery, Conspiracy to commit burglary and stealing contrary to Section 6(b) and Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation of Nigeria, 2004 and Section 411 and 516 of the Criminal Code, Cap 38 Vol. II Law of Oyo State of Nigeria, 2000. The four counts of the amended charge reads thus:
COUNT 1
That you, Olayiwola Tajudeen, Ezekiel Aremu and one Seun Ajakaye now in Correctional Service Centre, Ilorin on or about 23rd December, 2007 at about 2030hrs at Olugbon Area, Ogbomoso in the Ogbomosho Judicial Division conspired together to commit a felony to wit: armed robbery and thereby committed an offence contrary to and punishable under Section 6 (b) of Robbery and Firearms (Special Provisions) Act, Cap R11 Vol. XIV, Laws of the Federation of Nigeria, 2004.
COUNT 2
That you, Olayiwola Tajudeen, Ezekiel Aremu and one Seun Ajakaye now in Correctional Service Centre, Ilorin on or about 23rd December, 2007 at about 2030hrs at Olugbon Area, Ogbomoso in the Ogbomosho Judicial Division while armed with gun and other offensive weapons robbed Mr. and Mrs. Gbenga Shodipo of their Laptop, Mobile Phone (72 pieces), 1 DVD player, jewelleries and cash of N350,000.00 and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Vol. 14 Laws of Federation of Nigeria 2004.
COUNT 3
That you, Olayiwola Tajudeen and one Seun Ajakaye now in Correctional Service Centre, Ilorin on or about 16th December, 2007 at about 2030hrs at Olugbon Area, Ogbomoso in the Ogbomosho Judicial Division did conspire to commit a felony to wit burglary and stealing thereby committed an offence contrary to and punishable under Section 516 of Criminal Code, Cap 38, Vol. II Laws of Oyo State, 2000.

COUNT 4
That you, Olayiwola Tajudeen and one Seun Ajakaye now in Correctional Service Centre, Ilorin on or about 16th December, 2007 at about 2030hrs at Olugbon Area, Ogbomoso in the Ogbomosho Judicial Division did break and enter into the premises of Mr. and Mrs. Shodipo with intent to commit a felony to wit: stealing thereby committed an offence contrary to and punishable under Section 411 of the Criminal Code, Cap 38, Vol. II Laws of Oyo State, 2000.

Thereafter, trial commenced at the lower Court and the Respondent called three witnesses and tendered Exhibits A, B-B3, C-C1, D-D6 while the Appellant testified in person. After due consideration, the trial Court convicted the Appellant on Count II and was sentenced to death as prescribed under Section 1(3) of the Robbery and Firearms (Special Provision) Act. The Appellant aggrieved with the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by B. P. OGUNDELE, ESQ., is dated 28th day of October, 2021 and filed on the same day. The Appellant distilled 5 issues for determination as follows:
1. Whether or not the learned Judge was right in convicting or sentencing the Appellant for a offence of armed robbery by shifting the onus of proofing the defence of Alibi raised by the Appellant on the Appellant to prove in his defence. (Distilled from ground 1)
2. Whether or not the learned Judge did not erred in law and misdirected himself by holding that the prosecution proved the offence of armed robbery beyond reasonable doubt against the Appellant by reducing overwhelming contradictions and inconsistencies in the evidence of the prosecution and in the record of the Court to mere discrepancies.
3. Whether or not the learned Judge did not erred in law and misdirected himself by failure to take the issue of poor or lack of proper identification of the Appellant into consideration in his judgment.
4. Whether or not the learned Judge did not erred in law and misdirected himself when he sentenced the Appellant and discharge the 2nd Defendant despite similar overwhelming facts/evidence allegedly linking the Appellant and the 2nd Defendant to the alleged offence of armed robbery like Siamese Twins and most importantly, when the facts and evidence are interwoven. (Distilled from ground 4)
5. Whether or not the judgment of the learned Judge’s observation and conclusion is against the weight of evidence in the Record of Court.

The Respondent’s brief settled by YUSSUFF OLATUNJI OGUNRINDE, ESQ., dated 21st day of January, 2022 and filed on the 24th day of January, 2022 but deemed on the 6th day of April, 2022. The Respondents distilled a sole issue for determination as follows:
Whether having regards to the circumstances of this case, the totality of the evidence on record and the position of the law, the lower Court was to have found the Appellant guilty of the offence of armed robbery. (Distilled from grounds 1 to 5)

Thereafter the Appellant filed a reply brief dated 4th February, 2022 but deemed on 6th day of April, 2022.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that where an accused person raised a defence of alibi, the prosecution is duty bound to investigate that alibi in order to verify its truthfulness and failure to investigate the reliability of an alibi properly and timeously creates doubt in the mind of the Court thereby leading the Court to quash the conviction imposed on the accused person as held in ONUCHUKWU V. STATE (1998) 4 NWLR (PT. 547) 576 and NJIOKWUEMENI V. STATE (2001) 14 WRN 96. Continuing, the Appellant further submits that he was not at the locus in quo but at his mother’s house in Ilorin, Kwara State for Eid-Ul-Kabir (Ileya) Festival, however, the trial Court shifted the onus of proving the defence of Alibi on the Appellant which is contrary to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 135 (1) & (2) of the Evidence Act, 2011 thereby occasioned miscarriage of justice. The Appellant referred the Court to SADIKU V. STATE (2013) 11 NWLR (PT. 1364) 191, OBI V. A.G. IMO STATE (2016) 3 NWLR (PT. 1500) 425, ZEBULON V. STATE (2019) 11 NWLR (PT. 1684) 383 CA, KANU V. A.G. IMO STATE (2019) 10 NWLR (PT. 1680) 369, IDEMUDIA V. STATE (2015) 17 NWLR (PT. 1488) 375 SC, NNUNUKWE V. STATE (2003) 14 NWLR (PT. 840) 213 CA KACHI V. STATE (2015) 9 NWLR (PT. 1464) 213 CA.

The Appellant also relied on NWATURUOCHA V. STATE (2011) 6 NWLR (PT. 1242) 170 and NWEZE V. STATE (2017) LPELR-42344(SC) to restate the meaning of reasonable doubt and argued that the burden of proof remains on the prosecution throughout and does not shift to the accused person except in a few limited circumstances such as where an accused person raised the defence of insanity. The Appellant urge the Court to hold that the trial judge erred in law and misdirected himself when he shifted the onus of proof on the Appellant on the defence of Alibi raised.

ISSUE TWO
In arguing this issue, the Appellant submits that the lower Judge erred in law and misdirected himself by holding that the prosecution proved the offence of Armed Robbery beyond reasonable doubt against the Appellant by reducing overwhelming contradictions and inconsistencies in the evidence of the prosecution to mere discrepancies. Continuing, the Appellant argued that learned trial Judge erroneously stated that the contradictions contained in the statement of PW1 and PW2 are mere discrepancies and not material contradictions. The Appellant reproduced the evidence of PW1 and PW2 at pages 19 and 28 of the record of appeal to show the contradictions and the Court has a duty to resolve the doubt in favour of the accused as held ODU V. STATE (2000) 7 NWLR (PT. 664) CA and BELLO V. STATE (2020) 3 NWLR (PT. 1710) 72 SC.

It is the argument of the Appellant that there are material contradictions on the authenticity and the identity of the Appellant especially when the Appellant was not arrested at the scene of the crime and further the description of the Appellant by PW1 and PW2 was not given to the investigating officer timeously which is fatal to the prosecution’s case. Furthermore, the Appellant submits that the trial Court ought not to hold that the material Contradiction are mere discrepancies because the Supreme Court had overturned convictions on the grounds of material contradictions as held in ORISA V. STATE (2018) 11 NWLR (PT. 1631) 453 SC, KANU V. A.G. IMO STATE (2019) 10 NWLR (PT. 1680) 369SC and UGBOJI V. STATE (2017) LPELR-43427(SC). The Appellant urged the Court to hold that the failure to adequately analyse the material contradictions and inconsistencies occasioned miscarriage of justice against the Appellant.

ISSUE THREE
The Appellant argued that the trial Judge erred in law and misdirected himself when he held that the prosecution proved the offence of armed robbery beyond reasonable doubt against the Appellant through proper identification of the Appellant as the Respondent failed to prove that the he was one of the armed robbers. The Appellant submitted that the Appellant was not arrested at the scene of the crime nor was there any weapon on him when he was arrested and the Appellant was arrested 15 days after the robbery event. That there was no proper identification that was conducted by the police and he urged the Court to hold that the investigating police conducted a poor identification process by following PW1 to arrest the Appellant at his Football Viewing Centre, this mode of identification is not known to our criminal jurisprudence and practice. The Appellant relied on EBENEZER V. STATE (2020) 8 NWLR (PT. 1727) 573 SC and ATTAH V. STATE (2010) 10 NWLR (PT. 1201) 190.

On the same point, the Appellant contends that a proper identification parade must take into account the description of the accused given to the police shortly after the commission of the offence, the opportunity the victim had of observing the accused and the features of the accused noted by the victim which marks the accused from other persons and failure to conduct identification parade where necessary, creates doubt in the case of the accused as held in IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455, NDUKWE V. STATE (2009) 7 NWLR (PT. 1139) 43, OSUAGWU V. STATE (2016) LPELR-40836, EBENEZER V. STATE (SUPRA) and UGBOJI V. STATE (2017) LPELR-43427 (SC). The Appellant urged the Court to resolve this issue in favour of the Appellant.

ISSUE FOUR
The Appellant submits that the trial Judge erred in law and misdirected himself when he held that the prosecution proved the offence of armed robbery beyond reasonable doubt against the Appellant while he discharged the 2nd Defendant despite similar overwhelming evidence allegedly linking them like Siamese twins. The Appellant reproduced the evidence of PW1 at pages 218 to 219 and the holding of the trial Judge at pages 77 to 79 to submit that the judgment against the Appellant was bias because the trial Court believed the defence of Alibi raised by the 2nd Defendant and refused to believe the same defence when raised by the Appellant and the law is trite that where two or more persons are charged with the commission of the same offence with similar evidence, the discharge of one means the discharge of others as held in AIKHADUEKI V. STATE (2014) 15 NWLR (PT. 1413) 530 SC, KALU V. STATE (1988) 4 NWLR (PT. 90) 503, ADELE V. STATE (1995) 2 NWLR (PT. 377) 269, EBRI V. STATE (2004) 11 NWLR (PT. 885) 589 and OKORO V. STATE (2012) 4 NWLR (PT. 1290) 351.

The Appellant urged the Court to discharge the Appellant as the trial Court discharged the 2nd Defendant based on the facts that are interwoven and also tied the Appellant and the 2nd Defendant.

ISSUE FIVE
In arguing this issue, the Appellant restated the principle of evaluation of evidence which is the primary duty of the trial Court and the Appellate Court will not interfere unless the trial Court failed to properly evaluate. The Appellant relied on ABIODUN V. STATE (2013) 9 NWLR (PT. 1358) 138 SC, DOMA V. OGIRI (1998) 3 NWLR (PT. 541) 246, ABISI V. EKWEALOR (1993) 6 NWLR (PT. 302) 643, BASSEY V. STATE (2019) 18 NWLR (PT. 1703) 126 SC, MUKA V. STATE (1976) 9-10 S.C. 305, OKIEMUTE V. STATE (2016) 15 NWLR (PT. 1535) 297 SC, OGUONZEE V. STATE (1998) 5 NWLR (PT. 551) 521, BAKARE V. STATE (1987) 1 NWLR (PT. 52) 579 and OGUNDIYAN V. STATE (1991) 3 NWLR (PT. 181) 519.

Continuing, the Appellant submits that the trial Court did not properly evaluate the material facts of contradictions and inconsistencies contained in the record of the Court, the poor identification of the Appellant by PW3 and the procedure stipulated by the Supreme Court was not followed by the investigator (PW3) before PW1 was taken to the Appellant’s Football Viewing Centre. The material facts before the Court against both Appellant and 2nd Defendant and the defence of Alibi raised by the Appellant at the earliest opportunity was not established. On the same point, the Appellant submitted that where a trial Judge perverse or fails to properly evaluate the evidence before it, the Appellate Court has the duty to ensure that the error or omission of the trial Court is corrected by re-evaluating the evidence on record and entering judgment in favour of the party which succeed as held in ACHILIHU V. ANYATONWU (2013) 12 NWLR (PT. 1368) 256 SC, HIGHGRADE MARITIME SERVICES LTD V. FBN LTD (1991) 1 NWLR (PT. 167) 290, ONWUKA V. OMOGUI (1992) 3 NWLR (PT. 230) 390 and EBBA V. OGODO (1984) SCNLR 372.

Relying on UKWUNNENYI V. STATE (1989) 4 NWLR (PT. 114) 131 and FELIX NWOSU V. STATE (1986) 4 NWLR (PT. 348) 359 to contend that the evidence of the Respondent heavily relied on by the lower Court to convict the Appellant does come near proof beyond reasonable doubt that the Appellant was one of the people that robbed PW1 and PW2 with the weapon as alleged, had the lower Court properly averted his mind to it, the Appellant would have been discharged and acquitted. Again, the Appellant submits that the contradiction in the case of the prosecution strongly affected the decision of the lower Court which has occasioned serious miscarriage of justice against the Appellant. The Appellant urged the Court to discharge and acquit the Appellant.

RESPONDENT’S SUBMISSION
SOLE ISSUE
In arguing this sole issue, the Respondent submitted that it has discharged the burden placed on the Respondent beyond reasonable doubt as provided in Section 135 (1), (2) and (3) of the Evidence Act, 2011, the case of MBANG V. THE STATE (2013) ALL FWLR (PT. 674) 102 and ONAFOWOKAN V. THE STATE (1987) 7 SC (PT. 11) 198. Continuing, the Respondent submits that the Appellant argued that the identity of the Appellant was not proved, however, through direct and circumstantial evidence, the offence was duly established against the Appellant because identification evidence is evidence which tends to show that the person charged with an offence is the same person who committed the offence and when a trial Court is faced with identification evidence, it must be satisfied that the evidence of identification has duly established the guilt of the Accused beyond doubt. The Respondent relied on NDIDI V. THE STATE (2007) 13 NWLR (PT. 1052) 633, OGOGOVIE V. STATE (2016) LPELR-40501 (SC), SALIU V. STATE (2014) 9 SCM 171, NGUMA V. AG IMO STATE (2014) 3 SCM 137, IBRAHIM V. COP (2020) 3 SCM 57, ARCHIBONG V. THE STATE (2006) 5 SC (PT. III) 1 and STATE V. YAHAYA (2019) LPELR-47611(SC).

Further on this issue, the Respondent submits that the evidence of the PW1 and PW2 being eye witnesses has established that the Appellant was one of the assailants considering the length of time under the lighting condition and close contact, therefore, the evidence of PW1 and PW2 are credible. It is the argument of the Respondent that where an accused person raised the defence of alibi, he must raise it timeously and furnish the investigating officer with sufficient particulars about his whereabouts on the day in question but where he fails to do that and the evidence fixes him to the crime scene, the defence will not avail him, relied on IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455, OKOLO OCHEMAJE V. STATE (2008) 10 SCM 103, IBRAHIM V. COP (2020) 3 SCM 57 and ALIU V. STATE (2015) 2 NWLR (PT. 1442) 86. However, in the instant case, the Appellant’s alibi if any, was not disclosed to the police at the time the Appellant volunteered his statement as same is not contained in the statement to the police neither did he state it while giving his evidence before the Court nor mentioned it to any police officer, therefore the police were not given the opportunity to investigate the alibi rather all the evidence tendered fixed the Appellant at the crime scene.

According to Respondent, the Appellant argued that there were contradictions in the evidence of the Appellant however, it is trite that for the inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be material significant as to affect negatively the overall case of the prosecution, otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court as held in GALADIMA V. STATE (2017) LPELR-43469 (SC). The Respondent reproduced the holding of the trial Court at pages 282-287 to contend that the trial Court properly evaluated the evidence and unless the Appellant is able to show a substantial error apparent on the face of the record, the Court cannot set aside the judgment of the trial Court. The Respondent submits that the Respondent was able to establish that there was armed robbery and the Appellant was one of the robbers. The Respondent cited ALABI V. STATE (1993) 7 NWLR (PT. 307) 511, ENANG & ORS V. ADU (1981) LPELR-1139(SC) and NIGER CONSTRUCTION LTD V. OKUGBENI (SUPRA) and urged the Court to resolve this sole issue and dismissed the appeal.

APPELLANT’S REPLY
The Appellant in reply submits that the Respondent failed to satisfy the burden of debunking all the 5 issues raised by the Appellant in his brief and ground 4 of the grounds of appeal, and as provided in Section 135(1) and (2) of the Evidence Act, 2011, hence, he urged the Court to hold that the Appellant should be discharged and acquitted based on the grave error made by the lower Court. The Appellant relied on AIKHADUEKI V. STATE (2014) 15 NWLR (PT.1413) 530 SC and OKORO V. THE STATE (2012) 4 NWLR (PT. 1290) 351. Continuing, the Appellant further submits that the Respondent failed to respond to the following issues raised by the Appellant: firstly, failure of the lower Court to properly evaluate the defence of Alibi raised by the Appellant and shifting the onus of proving the defence of Alibi, in its judgment on the Appellant is against the weight of evidence in the record of the Court as it is the duty of the Prosecution to investigate the defence of Alibi relied on ONUCHUKWU V. STATE (1998) 4 NWLR (PT. 546) 576, ABDULLAHI & 2 ORS V. STATE (2013) 3 SCNJ (11) 452, UBIERHO V. STATE (2005) 5 NWLR (PT. 919) 644 and FABIYI V. STATE (2015) LPELR-24834(SC).

Secondly, the Appellant submits that the Respondent failed to properly debunk and analyse the issue of material contradictions and inconsistencies raised by the Appellant in his brief and the issue of the trial Court’s failure to take into consideration the evidence of PW3 that showed that there was no evidence to support the descriptions and features of the Appellant taken from PW1 and PW2 before the Appellant was arrested as one of the robbers and the fact that the description that was given was not timeously, it was fatal to the Respondent’s case as held in SALE V. STATE (2016) 3 NWLR (PT. 1499) 392 SC, MOHAMMED V. STATE (2014) 2 NWLR (PT. 1390) 44 CA and DAWAI V. STATE (2018) 5 NWLR (PT. 1613) 499 SC. Finally, the Appellant submits that the Respondent failed to respond on the issue of evaluation of evidence raised by the Appellant, therefore, the Appellant urged the Court to re-evaluate the evidence and the findings of the trial Court as the Respondent’s failure means admission. The Appellant cited OKIEMUTE V. STATE (2016) 15 NWLR (PT. 1535) 297 SC and OGUONZEE V. STATE (1998) 5 NWLR (PT. 551) 521. The Appellant urged the Court to discharge and acquit the Appellant in this case.

RESOLUTION
Upon a careful consideration of the Notice of Appeal, the Records of Appeal, the briefs of learned Counsel for the parties in the appeal, I am of the considered opinion that being a Criminal Appeal, the one basic thing that calls for consideration is whether the Respondent proved its case according to law to warrant the conviction and sentence. All other questions and challenge to evaluate evidence falls within the said issue. I shall determine the appeal on the single issue named above. The Appellant raised a whopping 5 issues for determination which all come under the single question raised above.

In any criminal case, the burden of proof rest with the prosecution and is static, the standard is proof beyond reasonable doubt. See MINDI V. STATE (2020) LPELR-52897(SC) and SHAHINUL V. FRN (2018) LPELR-44528(CA) wherein the Court held thusly:
“Our criminal justice system is adversarial and the prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt.” Per OGAKWU, J.C.A in
The only exception is evidential burden which the apex Court in NWAVU & ORS V. OKOYE & ORS (2008) LPELR-2116(SC) explained as follows:

”The evidential burden, on the other hand, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage. This burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side.” This is the import of Section 136 of the Evidence Act. Thus, the evidential burden rests initially upon the party bearing the legal burden, but as the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence. See Abrath v. North Eastern Rly Co. (1883) 11 QBD 440 at 456, C. A, per Bowen L. J. There may, of course, be exceptions to the normal rules regarding incidence of a burden of proof. For instance, where there is a rebuttal presumption of law in favour of one party the burden of rebutting it lies upon the other, e.g. a party suing on a bill of exchange need not initially give any evidence of consideration, or that he is a holder in due course, since there are presumptions to this effect in his favour. Similarly, where the truth of a party’s allegation lies peculiarly within the knowledge of his opponent, the burden of disapproving it often has upon the latter. See R. v Edwards (1975) Q. B. 27.” Per MUHAMMAD, J.S.C.
A typical example of when evidential burden could arise in when a defendant raises the defence of alibi, if he fails to lead evidence then he cannot be entitled to the defence, see what EKO, J.S.C in EZEKWE V. STATE (2018) LPELR-44392(SC):
“Alibi is a question of fact provable by credible evidence. The fact constituting the alibi is one peculiarly within the knowledge of the Defendant. The burden of proving that fact that is specially within the knowledge of the Defendant pleading alibi is on him, the pleader, by virtue of Section 140 of the Evidence Act, 2011. He who asserts alibi must prove it. Section 131 of the Evidence Act enjoins whoever desires any Court to give him judgment as to any legal right or liability dependant on the existence of facts which he asserts shall prove that those facts exist. Exhibit A having fixed the Appellant to the scene of crime and the crime alleged, the evidential burden is on him, by virtue of Section 132 of the Evidence Act, to cast reasonable doubt that he was at the scene of crime. And he would fail if no evidence, or believable evidence, were at all given. The evidential burden is no derogation of the burden of proving beyond reasonable doubt the guilt of the accused person. Every Defendant has a burden to prove his own defence.”

In this appeal, the Appellant raised the defence of alibi in his defence and argued it under his issue one. Once alibi is raised late and during trial, it cannot stand. The Appellant contended that the lower Court shifted the burden of proof onto the Appellant, however, this is far from the truth and he can argue so, due to a misconception of what the defence of alibi stands for and how it can be raised and considered by the Court. The Appellant did not also call any family member who saw him in Ilorin as a witness even if belated to justify the defence of alibi. The Appellant did not give relevant particulars to the police at the earliest opportunity to allow the Investigating Police officers investigate the alibi, see SANI V. STATE (2015) LPELR-24818(SC) wherein the apex Court held thusly:
“For a defence of alibi to avail an accused person, it must be raised timeously and specifically, this is because by nature, the defence presupposes that the accused does not only claim that he never committed the offence alleged, but also that he was not at all at the scene of the crime or within the vicinity. The law is trite and well established therefore that in an offence requiring physical presence, an alibi set up by an accused person must be investigated thoroughly by the police. It must be definite as to time, place and the persons who know about the accused’s whereabout. Once it is raised by the accused, the onus rests on the prosecution to disprove it. See Yanor v. State (1965) NWLR 337 and Chukwu V. State (1996) 7 NWLR (Pt.463) 686 at 702.” Per OGUNBIYI, J.S.C.
He raised it while in the witness box and admitted that he did not tell the police that he was in Ilorin on the day of the incident. Therefore, the defence of alibi cannot be available to the Appellant as contended by the Appellant’s Counsel. The defence of alibi failed.

The prosecution has 3 settled ways it can prove any allegation it levels against any Defendant, they were listed in the case of ADEYEMO V. STATE (2015) LPELR-24688(SC) wherein the apex Court held thusly:
“It is settled that the three ways of proving the commission of a crime are: by direct evidence, by confessional statement of the accused and by circumstantial evidence.” Per OGUNBIYI, J.S.C.

It could be any of the ways or a combination of any two. In this case there were eye witness accounts and circumstantial evidence upon which the lower Court found the Appellant guilty of the offence of robbery.

The Respondent called 3 witnesses in proof of the charge and PW1 and PW2 were victims of the robbery while PW3 was the investigating Police officer. It is noteworthy to state that there is no confessional statement before the Court, Exhibit B-B3 are statements of the Appellant but not confessional and the lower Court believed that the Appellant made the statements, however, they are not useful to the case of the Respondent.

The offence for which the Appellant was found guilty was armed robbery. It was defined in the case of IBRAHIM V. STATE (2013) LPELR-21883(SC) wherein the apex Court held thusly:
“It is necessary to now state what the definition of robbery is and in this regard that definition is found under Section 15(i) of the Robbery and Firearms (Special Provisions) Act Cap. 398 which provide as follows:-
“Robbery means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance of its being stolen or retained.” Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See Agboola v. The State (supra).” Per ARIWOOLA, J.S.C.

The ingredients of the offence for which the Respondent must satisfy with evidence are as follows:
(1) That there was a robbery.
(2) That it was an armed robbery.
(3) That the accused was the robber or one of the robbers.
All the three ingredients must be altogether proved for the offence to be said to have been proved. See Adekoya v. State (2012) MSCJ vol. II p.20 – 21. See NWOKOCHA V. AG OF IMO STATE (2016) LPELR-40077(SC).
The first ingredient is to prove that there was a robbery or series of robberies, this the prosecution witnesses established it, PW1 and PW2 were victims and items stolen were listed. This ingredient was not contested. The next ingredient is that the Appellant was amongst those who carried out the robbery. This was stoutly contested and this was argued by the Appellant under issue 3 donated by the Appellant.

Identification is defined to mean series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprits by a witness who saw him in the act of commission which is called in question or a combination of two or more of these, see the case of the STATE V. AIBANGEE (1988) 3 NWLR PT. 14 PG. 548 and ATTAH V. STATE (2010) LPELR-597(SC).

It is fallacious to think that the only acceptable identification of an accused person, when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence. See the case of ADEYEMI V. STATE (1991) LPELR-168(SC).
Identification parade is not the only means of identification, there could also be voice or visual identification. If a victim or witness successfully proves visual or voice identification, there will be no need for identification parade. See JONATHAN IGBI & ANOR VS THE STATE (2000) 3 NWLR Part 648 Page 169.

What is an identification Parade in criminal jurisprudence? In ALUFOHAI V. STATE (2015) 7 NWLR (PT. 1445) P. 72 @ 191, the Apex Court defined an identification parade as generally, 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 also AGBOOLA V. STATE (2013) 11 NWLR (PT. 1366) 619.

An identification parade is the evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. Therefore, whenever a trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence for which he is standing trial. See the case of IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455 and AGBOOLA V. STATE (2013) 11 NWLR (PT. 1366) 619.

Also, identification may take various forms-visual identification, voice identification as was the case in the English case of R V. JOHN KEATING (1909) 2 CRIM APP. REPORT 61 followed in IBE V. THE STATE (1992) 5 NWLR (PT. 244) 642, 649, identification parade, etc. See the case of EYISI & ORS V. STATE (2000) LPELR-1186(SC).

The Learned Counsel for the Appellant also submitted that the evidence on identification of the Appellant is doubtful. Identification of the Appellant was considered by the trial Judge and found that it was not in doubt because he was clearly identified the victims of the robbery. The trial Judge evaluated the evidence on identification of the Appellant.

The trial Judge considered the guiding principles in resolving identification, some of which are: i). circumstances in which the eye witness saw the suspect or defendant. ii). The length of time the witness saw the defendant/ accused. iii). The lightning condition and iv). The opportunity of close observation. In this case PW1 and PW2 were eye witnesses who had a close range and for a reasonable time and the light was the torch light of one of the robbers who came with it to the house.

The important issue here is that the trial Judge believed their testimonies on the identification. The cross-examination of PW1 sated clearly it was the person who stood by the window outside who lighted the room, see page 85 of the record of appeal. If PW1 did not recognize the Appellant how could she have shown him to the police to be arrested at the Football viewing Centre the day he was arrested? I do not agree that the finding on the issue is perverse. Also, there was evidence before the Court abound that PW1 saw the Appellant face to face and she had known him before so the question of mistaken identity cannot arise.

There was clear identification of the Appellant. Issue three is resolved against the Appellant, the Appellant was linked with the commission of the crime by evidence of prosecution witnesses.

The next ingredient of armed robbery is that either the Appellant or any member of the gang was armed with dangerous weapon. There was evidence that one of the members of the gang was armed with a gun and as observed by the trial Judge, PW1 admitted she did not see the gun but her husband saw it and PW2 confirmed that the Appellant came with a gun and also told the Court (see page 280 of the record) and that he was hit by the gun and he bled too.
Having accepted the evidence, the law is that any member of the gang if armed means it was armed robbery, in fact, the Appellant may not necessarily be the one armed, the ultimate result is the same, see OKPULOR V. STATE (1990) LPELR-2523(SC) wherein the apex Court held thusly:
“In law, it matters not that the appellant does not carry weapon, even though in this case he was found to have carried a gun. Once it is established that the appellant was among the robbers not as a casual onlooker, but a full participant and his accomplices now at large not only carried firearms but actually engaged the police, who challenged them in crossfire, the appellant was guilty of the offence of armed robbery. [Ikemson v. The State (1989) 3 N.W.L.R. (Pt. 110) 455].” Per BELGORE, J.S.C.

Furthermore, failure to tender the weapon used in the robbery does not mean that a weapon was not used and that cannot defeat the case, see SIMON V. STATE (2017) LPELR-41988(SC) wherein the apex Court held thusly:
“On the failure of the prosecution to tender the weapon used in the armed robbery. The Court of Appeal said: “The prosecution need not tender the weapons of the offence of robbery. “Relying on the decision of this Court in Olayinka v. State (2008) 6 ACLR P.194 This Court said: “With respect to the submission of the appellant about the failure of prosecution to tender the weapons of the alleged robbery and its effect on the prosecution, I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person.” I earlier on alluded to what is required of the prosecution to establish the guilt of an accused person in a charge of armed robbery. Nowhere in the law is it stated that the prosecution should tender weapons used in the robbery. Weapons used in armed robberies are usually easily disposable items as in this case, clubs, stick, cutlasses. The circumstances of robberies do not require the tendering of weapons used by the robbers, all that is required is that the robber was armed when he robbed the victim. The prosecution does not need to tender the weapons used in an armed robbery.” Per RHODES-VIVOUR, J.S.C.

Another issue considered by the Appellant is the decision of the Court below to discharge the 2nd Respondent while convicting the Appellant on the same facts and interwoven evidence. The Appellant has a right of appeal against the judgment of the lower Court as it concerns him. The 2nd Defendant was arraigned by the Respondent and if the lower Court discharged him, it is the Respondent that should grouse against the discharge and not the Appellant. The grounds of appeal and issues should be from the findings that touch the Appellant personally. Each Defendant answers to the charge individually and joint trial is for convenience because each Defendant takes a separate plea and defends the allegation, see OKO V. STATE (2017) LPELR-42267(SC) and EYISI v. STATE (2000) 15 NWLR (Pt. 691) 555.
The Appellant therefore, lacks the competence to challenge the discharge of the 2nd Defendant because they defended the allegation separately and the evidence of the prosecution witnesses also affected each defendant individually. The trial Judge had a doubt on the participation of the 2nd Defendant, it may not be justified but there is no appeal against the discharge by the Respondent. The Appellant lacks the competence to question it. The Appellant’s duty as the Appellant is to complain against the findings that affected him and not any other person accused, see DABOH & ANOR V. THE STATE (1977) 5 SC 122.

However, in the interest of justice, I shall consider the complaint on the merit. The Appellant listed areas he considered were full of contradictions and touched on both Defendants before the lower Court.

One of the issues is that there was contradiction in the evidence of the prosecution, the law defines it thus:
“Contradiction has been defined as a lack of agreement between facts related by two persons.” Per FABIYI, J.S.C in BASSEY V. STATE (2012) LPELR-7813(SC). “The word contradiction comes from two Latin words – contra, which means opposite, and dicere, which means to say. Therefore in ordinary conversation to contradict is to speak or affirm the contrary.” Per MOHAMMED, J.S.C in DAGAYYA V. STATE (2006) LPELR-912(SC).

The law is also trite that the kind of contradiction that affects the case of the Appellant is material contradiction, see EDOREH & ANOR V. STATE & ANOR (2007) LPELR-8773(CA) wherein the Court held thusly:
“… I am in full agreement with the reasoning of the Respondent in its Brief of Argument that not all contradictions are material. For a contradiction to be material, it must go to the root of the charge.” Per ALAGOA, J.C.A
Other than material contradictions, minor contradictions is usually expected in the testimonies of witnesses except if they were tutored, see the case of DIBIE V. STATE (2007) LPELR-941(SC) wherein the Court held thusly:
“It is necessary to say that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in an unconnected evidence given from human memory. They are usually expected in every trial since human memories do not have equal capacities of storing and retrieving events that happened. There is therefore bound to be minor discrepancies in an account of the same event in the evidence of same event given by different eye-witnesses. Such could only not exist where such witnesses are schooled as to what to say. It is trite that minor contradictions in the evidence of the prosecution witnesses would not be fatal to the case of the prosecution. See Wankey v. State (1993) LPELR-3470(SC), Princent & Anor v. State (2002) LPELR-2925(SC), Ochani v. The State (2017) LPELR-42352(SC).” AKINTAN, JSC.
The law admits and allows discrepancies which does not affect material aspects of the case, see FALEYE V. STATE (2012) LPELR-20429(CA) wherein the Court held thusly:
“…Minor discrepancies in the evidence of the prosecution witnesses that does not affect the ingredients of the offence as in this case, are not sufficient to entitle the appellant to an acquittal and not fatal to the case of the prosecution, the contradiction must be material.” Per UWA, J.C.A.

The trial Judge painstakingly considered the allegation that there were contradiction and ruled against it, see page 257 – 259 of the record of appeal.

The Appellant wanted to know whether the lower Court’s finding of guilt and conviction was justified, whether the ingredients of the offence of armed robbery.

The evidence before the Court, in my view, is that evidence which tends to show that the Appellant is the same as the person who was seen committing the offence. See OTTI VS STATE (1993) 4 NWLR Part 290 Page 675 at 681. Therefore, it is not in all criminal cases that an identification parade is necessary, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary.

I therefore resolve the issue of identification against the Appellant.

The Appellant also challenged the outcome or decision of the trial Court contending that it against the weight of evidence, in criminal trial, the burden of proof is static on the Respondent as prosecution and therefore the question of weight of evidence does not arise, such terminology is applicable to civil claims where evidence is placed on an imaginary scale and weight is applied the heavier side. However, the trial Court has the duty to evaluate evidence, see OKASI V. STATE (2016) LPELR-40455(CA) wherein Court held thusly:
“The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words, ascription of probative value or weight to such evidence are the function of the trial Court which saw, heard and watched the demeanour of witnesses while they testified. See BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PART 1332) 347 at 401 E – H.” Per IGE, J.C.A.

It is trite that unless, it is shown that the evaluation done is perverse, the Appellate Court cannot interfere with the evaluation done by the trial Court, see ZENITH BANK PLC V. TITILAYO (2015) LPELR-24782(CA) where I had this to say:
“An appellate Court cannot interfere with findings of facts upon a proper evaluation of evidence. The Court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see GAJI V. PAYE (2003) 8 NWLR (Pt 823) 583 which held thus:
“As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court, which saw, heard and assessed the witnesses. Where a Court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once there is evidence on record, the appellate Court cannot interfere.”

Perverse decision means is a decision which ignores the evidence before the Court and which results in or amounts to a miscarriage of justice, see ATOLAGBE VS SHORUN (1985) 1 NWLR (PT. 2.) 360 AT 375 and FBN PLC V. OZOKWERE (2013) LPELR-21897(SC). Instances where a decision of a Court will be termed perverse were given in the cases of YARO V. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT.1063) 333 AT 374 AND OLANIYAN & ORS V. FATOKI (2013) LPELR – 20936 (SC) and ODOM & ORS V. PDP & ORS (2015) LPELR-24351(SC) as follows:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of Justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertained facts.”

I have reviewed the evidence and the findings of the trial Court and the trial Judge based the findings on the evidence before the Court and where the Judge observed the witnesses in the box and believed their testimony, this Court cannot find otherwise. The evidence is not documentary that the Court can look at it and evaluate, here it concerns witnesses who testified in the witness box and the trial Judge believed them. This Court cannot disbelieve the witnesses or the evaluation done by the lower Court. The findings are well founded on the evidence before the Court. I resolve issue 5 against the Appellant.

Having resolved all issues raised by the Appellant under the single issue formulated by the Court, the appeal lacks merit and is hereby dismissed. The judgment of Oyo State High Court, delivered by HON. JUSTICE R. B. AKINTOLA on the 7th day of July, 2021 is hereby affirmed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered.

My learned brother has, in a very comprehensive manner, considered the live issue in this appeal and given elaborate reasons for resolving it against the appellant. I agree with the decision of my learned brother and I also dismiss this appeal and affirm the judgment of the trial Court.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now, the leading judgment delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. His Lordship has exhaustively considered and resolved all the issues involved in this appeal. I however wish to emphasise the fact that the standard of proof in all criminal trials is proof beyond reasonable doubt.

Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond any shadow of doubt that the person accused is guilty of the offence charged. This is because in every human adventure, absolutism or certainty of any fact is impossible. Therefore, once all the ingredients of an offence have been proved by the prosecution to the satisfaction of the Court, the charge is said to have been proved beyond reasonable doubt. See AKINLADE VS. STATE (2022) 7 NWLR (PT. 1828)129, STATE VS. CHUKWU (2022) 6 NWLR (PT. 1825)105; ADEPOJU VS. STATE (2018) 15 NWLR (PT. 1641)103; STATE VS. JOHN (2013) 12 NWLR (PT. 1368) 337.

The victims of the armed robbery testified as PW1 and PW2. They gave eye witness account of the incident. It is clear from their evidence that robbers invaded their residence on 16th and 23rd of December, 2007. They testified that the armed robbers were armed and went on to identify the Appellant as one of the armed robbers. They established the three (3) ingredients required to sustain the Appellant’s conviction for the offences for which he was charged.

In the circumstance and for the fuller reasons contained in the lead Judgment I also hold that this appeal lacks merit and it is accordingly dismissed by me.