ISHOLA v. STATE (2021)

ISHOLA v. STATE

(2021)LCN/15169(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, June 09, 2021

CA/IB/293C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ABAYOMI ISHOLA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN THE NIGERIAN CRIMINAL JUSTICE SYSTEM

Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, the standard of proof in a criminal case is proof beyond reasonable doubt. PER OGAKWU, J.C.A.

MEANING OF PROOF BEYOND REASONABLE DOUBT

Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.
I iterate that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identity of the person or persons alleged to be the actual perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT. 1052) 633 at 651. PER OGAKWU, J.C.A.

WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 8 NWLR (PT. 1234) 209 at 236 and ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16. The lower Court rightly held that the Prosecution relied on all three ways or methods in proof of the offences charged. There is the eyewitness testimony of the PW1, the victim of the robbery, the confessional statement of the Appellant and the circumstantial evidence of the Appellant having been arrested with the stolen vehicle soon after the robbery, with the attendant presumption arising from the doctrine of recent possession and the legal prescriptions of Section 167 (a) of the Evidence Act. PER OGAKWU, J.C.A.

INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

The law is settled beyond peradventure on the conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery. They are:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the accused person was one of the armed robbers.
See BOZIN vs. THE STATE (1985) LPELR (799) 1 at 6, IKEMSON vs. THE STATE (1998) 1 ACLR 80 at 103 and OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 10-11. PER OGAKWU, J.C.A.

THE LAID DOWN TEST TO ASCERTAIN THE TRUTH OF A CONFESSIONAL STATEMENT

It is thus apposite at this stage to consider the confessional statements of the Accused person and consider whether it can pass the tests laid down to ascertain its truth by looking for other evidence outside it, no matter how slight in order to ascribe probative value to it. The tests so laid down which are herewith reproduced are contained in the Supreme Court decision of DAWA & ANOR & VS THE STATE (1980) 8-11 S.C. 147
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved? PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On or about the 2nd day of August 2012, there was an armed robbery incident at Km 14, Idiroko Road, Iju-Ota, Ogun State. The Toyota Camry Car belonging to the PW1 was stolen during the robbery. Shortly after the robbers made their getaway, the PW1 raised an alarm and a report of the robbery was lodged with the Police. Subsequently, information filtered to the PW1 that a Toyota Camry Car which matched the description of his stolen car was recovered by the Police from the Appellant, who was seen driving the car, and was unable to produce the vehicle particulars when the Police stopped him and demanded for the same. The PW1 proceeded to where the vehicle was said to have been recovered and identified the vehicle as his own which was stolen at a robbery incident in his house that day.

The Appellant was eventually arraigned before the High Court of Ogun State in CHARGE NO. HCT/8R/2015: THE STATE vs. ABAYOMI ISHOLA on an Information which preferred charges of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Sections 1 (2) (a)

and 6 (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria. The Appellant pleaded not guilty and the matter went to trial. The Prosecution called two witnesses in proof of the offences charged and tendered two exhibits, including the confessional statement of the Appellant, which was admitted in evidence after a voir dire and marked as Exhibit A. The Appellant testified for himself and did not call any other witness. At the end of the trial, the lower Court, Coram Judice: Ogunfowora, J., in its judgment dated 18th June, 2019 convicted the Appellant as charged and sentenced him to death.

The Appellant was peeved by the decision of the lower Court and appealed against the same by a Notice of Appeal filed on 15th July, 2019. The judgment of the lower Court is at pages 54-68 of the Records, while the Notice of Appeal is at pages 69-73 of the Records. In prosecution of the appeal, the Record of Appeal was compiled and transmitted on 1st August 2019, and the Appellant filed his brief of argument on 11th October, 2019. The Respondent in replication filed its brief of argument on 7th September, 2020. The

Appellant’s Brief was deemed as properly filed on 3rd June 2020, while the Respondent’s Brief was deemed as properly filed on 16th March, 2021. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant formulated two issues for determination in the appeal, namely:
“1. Whether the decision of the trial Court was reasonable having regard to the weight of evidence adduced before it to have decided that the prosecution has proved beyond reasonable doubt the offence of armed robbery and conspiracy to rob against the Appellant. (Distilled from Grounds 1, 3 & 4 of the grounds of appeal).
2. Whether the trial Court was not in error to have relied solely on the retracted confessional statement (Exhibit A) credited to the Appellant which is not corroborated by other ascertained facts or pass the basic fundamental of a valid statement to convict and sentence the appellant for armed robbery and conspiracy to commit armed robbery. (Distilled from ground 2 of the grounds of appeal).”

The Respondent on its part distilled a sole issue for determination, as follows:
“Whether the admission and the reliance on the Appellant’s confessional statement and the testimony of PW1 by the trial Court was wrong when convicting the Appellant for the offences of Conspiracy to Commit Armed Robbery and Armed Robbery, having considered Section 167 (a) of the Evidence Act.”

The issues crafted by the parties flow from the grounds of appeal, however, I will take the liberty to tinker with the issues in order to conduce to conciseness and clarity, bearing in mind that under our criminal jurisprudence the onus is on the prosecution to prove the offences charged beyond reasonable doubt. It is settled law that an appellate Court can adopt the issues formulated by the parties, but the Court is not only obliged, it is entitled to, in the interest of justice, to reframe or reformulate issues from the grounds of appeal in a manner that would bring out what is really in controversy and for the purposes of accuracy, clarity, brevity and precision that would lead to a proper determination of the appeal. See OKEKE vs. THE STATE (2016) LPELR (26057) 1 at 28-31,

KAYODE vs. THE STATE (2016) LPELR (40028) 1 at 8-9, THE STATE vs. SANI (2018) LPELR (43598) 1 at 10-12 and SALAWU vs. FRN (2019) LPELR (50060) 1 at 4-5. In this wise, it is my informed view that a sole distensible issue will suffice for the determination of this appeal. The issue which I find dilatable, cumulative and encompasses the issues formulated by the parties, and on the basis of which I will consider the submissions of learned counsel and resolve this appeal is:
Whether having regard to the circumstances of this case and the evidence on record, the lower Court was right in holding that the charges against the Appellant were proved beyond reasonable doubt.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the standard of proof in criminal cases is proof of the offences charged beyond reasonable doubt and that the lower Court was wrong in holding that the offences charged were proved beyond reasonable doubt. Section 135 (1) of the Evidence Act and the cases of WILLIAMS vs. THE STATE (1992) 10 SCNJ 74 at 75, KIM vs. THE STATE (1992) 4 SCNJ 81 at 84, ODUNEYE vs. THE STATE (2001) SCQR 1 at 3, UBAGI vs. THE STATE (2004) 1 MJSC 92 at

95 and THE STATE vs. OLADOTUN (2011) 10 NWLR (PT. 1256) 572 at 188 [sic] were referred to.

The case of SANI vs. THE STATE (2015) ALL FWLR (PT. 811) 1303 at 1315-1316 was cited on the ingredients of the offence of armed robbery and it was opined that the Prosecution did not establish the ingredients beyond reasonable doubt, especially proving that the Appellant was one of the armed robbers. It was stated that the lower Court relied on the confessional statement, Exhibit A, to hold that the Appellant was one of the armed robbers, when the said statement did not pass the test of the basic fundamentals of a valid confessional statement, as the Appellant did not therein admit or suggest that he committed the offences charged. Section 28 of the Evidence Act and the cases of ISAH vs. THE STATE (2010) 16 NWLR (PT 1218) 132 at 157-158 and JIMOH vs. THE STATE (2014) 10 NWLR (PT 1414) 105 at 138 were relied upon. It was argued that the charge was in respect of armed robbery said to have been committed on 2nd August 2012, while the confessional statement, Exhibit A, is a narration of what happened on 3rd August, 2012 and does not admit that the Appellant robbed PW1 of

his car on 2nd August, 2012.

It was contended that the lower Court cannot invoke the doctrine of recent possession under Section 148 (a) of the Evidence Act [now Section 167 (a) of the Evidence Act, 2011] to convict the Appellant, as the mere possession of the vehicle after the crime was not strong enough to link the Appellant to the commission of the crime vide OMOGODO vs. THE STATE (1977-1988) 2 SCJE 141 at 154. It was posited that the Appellant retracted the confessional statement, Exhibit A, which made it imperative for the lower Court to look for other evidence outside the confession in order to ascertain the truth of the confession, but that this was not done. The Prosecution, it was stated, failed to call the material witnesses in this regard, namely the Policemen that arrested the Appellant and the Investigating Police Officer (IPO) at Onipanu Police Station, where the Appellant was first taken upon his arrest and his first statement recorded, as well as the statements of those that arrested the Appellant. The failure to call these material witnesses, it was maintained, cast a doubt on the prosecution case, which doubt should be resolved in favour

of the Appellant. The case of OMOGODO vs. THE STATE (supra) was cited in support.

Without conceding that Exhibit A confessed or admitted the crime, the Appellant asserted that having retracted the said Exhibit A, the lower Court ought not to have accorded it probative value as it was not consistent with other ascertained facts when the tests to ascertain the weight to be attached to a retracted confessional statement are applied. The case of NWAEBONYI vs. THE STATE (1994) 5 SCNJ 86 was called in aid. It was argued that the testimony of the PW2 at the trial was different from what is contained in the Additional Proof of evidence as it relates to the language in which the confessional statement was interpreted to the Appellant and that the lower Court did not properly evaluate the evidence and resolve the contradiction in the evidence before ascribing probative value to Exhibit A, as there remained a doubt as to the person who obtained the statement, the date it was obtained and the language in which it was interpreted to the Appellant.

It was further contended that if the lower Court had clinically evaluated the evidence of the PW2 and the proof

of evidence, it would have concluded that Exhibit A, credited to the Appellant, was not true as a result of the doubts, which doubts ought to be resolved in favour of the Appellant vide ABDULLAHI vs. THE STATE (2008) 17 NWLR (PT 1115) 203 at 224. It was further submitted that other available evidence shows that the Appellant made a statement at Onipanu Police Station the day he was arrested but that the Prosecution failed to tender the statement or call the IPO who took the statement at Onipanu Police Station as a witness. It was stated that if the said statement had been tendered, it would have shown, when compared with Exhibit A, that Exhibit A, was not true. The lower Court, it was contended ought to have invoked the principle of withholding evidence under Section 167 (d) of the Evidence Act against the Prosecution. The cases of TSOKWA MOTORS (NIG) LTD vs. AWONIYI (1999) 1 NWLR (PT. 586) 199 at 207 and OGUDO vs. THE STATE (2011) 12 SC (PT. I) 71 at 128-129 were referred to. It was asserted that since the essential ingredients of armed robbery were not proved, the charge of conspiracy must also fail. The case of IDOWU vs. THE STATE (2011) LPELR-3597 was cited in support.

It is the further submission of the Appellant on the second issue he distilled that the lower Court was in error to have convicted solely on the retracted confessional statement when there were no other ascertained facts; and when the confessional statement did not pass the basic fundamentals of a valid statement. The Appellant repeated the submissions he made in paragraphs 4.09-4.44 of the brief and conclusively stated that the reliance by the lower Court on the retracted confessional statement was an error which occasioned a miscarriage of justice.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that in criminal trials, the onus is on the Prosecution to prove the offences charged beyond reasonable doubt; but that this does not connote beyond any shadow of doubt vide ABIODUN vs. THE STATE (2013) 9 SCM 1 at 5 and NWATURUOCHA vs. THE STATE (2011) 12 SCM (PT 2) 265 at 269. The ingredients of the offence of armed robbery as set out in the cases of OSUAGWU vs. THE STATE (2013) LPELR – 19823 (SC) and AJAYI vs. THE STATE (2013) 3 SCM 1 at 25 were referred to and it was posited that the evidence adduced by the

Prosecution established the ingredients beyond reasonable doubt; and that the prosecution’s evidence was corroborated by the Appellant’s retracted confessional statement.

It was stated that except in circumstances where corroboration is required by law, a Court can act on the evidence of a sole credible witness to convict vide NKEBISI vs. THE STATE (2010) 3 SCM 170 at 174; and that the ingredient of the Appellant being one of the robbers was proved by the prosecution witnesses, whose evidence remained unshaken under cross examination. It was contended that the doctrine of recent possession in Section 167 (a) of the Evidence Act is sufficient for a Court to presume that a person in possession of stolen goods is the thief and that the Appellant did not rebut the presumption. The cases of EZE vs. THE STATE (1985) 12 SC 4, EHIMIYEIN vs. THE STATE (2016) LPELR – 40841 (SC) and EWUGBA vs. THE STATE (2017) LPELR- 43833 SC at 22-24 were relied upon. It was therefore maintained that the lower Court was correct in invoking the doctrine. The cases of OMOPUPA vs. THE STATE (2008) ALL FWLR (PT. 445) 1648, SADIKU vs. THE STATE (2013) 12 SCM 146 at 53 [sic] and

ADESINA vs. THE STATE (2012) 6 SCM 82 were called in aid.

It was contended that the PW1 was not cross examined on the testimony that the stolen vehicle was recovered from the Appellant and that the failure to cross examine is an acceptance by the Appellant of that fact. The case of EWUGBA vs. THE STATE (supra) was cited in support. It was opined that the identification of the Appellant as one of the robbers is not in issue as he was duly identified by the PW1 and the stolen vehicle was also recovered from him. It was argued that there were no material contradictions in the testimony of the prosecution witnesses and that it is only material contradictions and not any discrepancy, contradiction or inconsistency that will vitiate the case of the Prosecution. The cases of EBEINWE vs. THE STATE (2011) 3 SCM 46 at 47, NDUKWE vs. THE STATE (2009) 2 SCM 147 at 150, MUSA vs. THE STATE (2013) 3 SCM 79 at 93 and ATTAH vs. THE STATE (2010) 5 SCM 57 at 60 were referred to.

The Respondent posited that by Section 29 (1) of the Evidence Act, a confession, if relevant, may be given in evidence against an accused person and that a Court can convict solely on a

confessional statement vide AKPA vs. THE STATE (2008) 8 SCM 68. It was stated that the Appellant’s confessional statement, Exhibit A, was admitted in evidence after a trial within trial and so an appellate Court cannot upturn the same, since the trial within trial process is based purely on the credibility of witnesses which an appellate Court is not privy to. The case of LASISI vs. THE STATE (2013) 6 SCM 97 at 113 was relied upon. It was therefore opined that a confessional statement is the best evidence and that when admitted in evidence, it forms part of the prosecution case and the lower Court was consequently right to consider the same. The case of NWACHUKWU vs. THE STATE (2007) 12 SCM (PT 2) 447 at 455 was cited in support.

The tests for ascertaining the veracity of a retracted confessional statement as set out in OSENI vs. THE STATE (2012) 4 SCM 150 at 153 were referred to and it was maintained that other available evidence corroborated the confession and that the lower Court was right to convict the Appellant based on the confessional statement which is direct, positive, duly made and satisfactorily proved; since corroboration can be by

direct evidence or circumstantial evidence. The cases of ISMAIL vs. THE STATE (2011) 10 SCM 35 at 39 and DAGAYA vs. THE STATE (2006) 2 SCM 33 at 67 were called in aid.

On the principle of withholding evidence raised by the Appellant, the Respondent contends that the principle deals with failure to call evidence and not failure to call a particular witness; but that the principle is not applicable to criminal trials vide THEOPHILUS vs. THE STATE (1996) 1 SCNJ 79 and FOWOSERE vs. THE STATE (2016) LPELR-40634 (CA). It was asserted that the Prosecution did not withhold evidence, and that the fact that the IPO and the policeman that arrested the Appellant with the car were not called as witnesses was not fatal since they were not vital witnesses, since the testimony of the PW1 fixed the Appellant at the scene of the robbery and the Appellant was found with the stolen car when he was apprehended. It was argued that the Appellant did not raise any issue as to the statement he made at Onipanu Police Station before the lower Court and that an Information filed in Court is just a guide and not the evidence that the trial Court is to rely upon.

With respect to

the conviction for the count of conspiracy, the Respondent referred to the definition of conspiracy in the Black’s Law Dictionary, 7th Edition, page 305 and the case of BELLO vs. THE STATE (2010) 12 SCM (PT 2) 28 at 34 on when the offence of conspiracy is complete. It was posited that the evidence of the PW1 and the Appellant’s confessional statement establish the meeting of the minds of the Appellant and his accomplices and that since they jointly took part in robbing the PW1, conspiracy can consequently be inferred.

RESOLUTION
Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, the standard of proof in a criminal case is proof beyond reasonable doubt. The lower Court held that the said standard of proof was attained, consequent upon which it convicted and sentenced the Appellant to death. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is

the person charged therewith that committed the offence. What therefore requires determination in this appeal is whether the lower Court rightly held that the offences of conspiracy to commit armed robbery and armed robbery against the Appellant were proved beyond reasonable doubt.
There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372, MICHAEL vs. THE STATE (2008) LPELR (1987) 1 at 24 and BAKARE vs. THE STATE (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13.
Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict

on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379-380 and ONIANWA vs. THE STATE (2015) LPELR (24517) 1 at 40-41.
I iterate that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identity of the person or persons alleged to be the actual perpetrators of the offence charged: NDIDI vs. THE STATE (2007) 13 NWLR (PT. 1052) 633 at 651.

It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:
1. By reliance on a confessional

statement of an accused person voluntarily made.
2. By circumstantial evidence.
3. By evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 8 NWLR (PT. 1234) 209 at 236 and ADEYEMO vs. THE STATE (2015) LPELR (24688) 1 at 16. The lower Court rightly held that the Prosecution relied on all three ways or methods in proof of the offences charged. There is the eyewitness testimony of the PW1, the victim of the robbery, the confessional statement of the Appellant and the circumstantial evidence of the Appellant having been arrested with the stolen vehicle soon after the robbery, with the attendant presumption arising from the doctrine of recent possession and the legal prescriptions of Section 167 (a) of the Evidence Act.

at 6, IKEMSON vs. THE STATE (1998) 1 ACLR 80 at 103 and OGOGOVIE vs. THE STATE (2016) LPELR (40501) 1 at 10-11. Understandably, while the Appellant contends that the lower Court was in error to have held that the ingredients were established, the Respondent asserts that the decision of the lower Court was right since the guilt of the Appellant had been established by the evidence adduced by the Prosecution.

It cannot be strongly contended in this appeal that the first two ingredients of there having been a robbery and that the robbery was an armed robbery had not been established. The testimony of the PW1 undoubtedly establishes these ingredients. As often as is the case in criminal trials, the contention is on the third ingredient, id est, whether the evidence established that the Appellant was one of the armed robbers. In holding that the evidence established beyond reasonable doubt that the Appellant was one of the robbers, the lower Court relied on the eyewitness testimony of the Pw1 which fixed the Appellant at the scene of crime, the circumstantial evidence in the confessional statement of the Appellant that he was arrested while driving the stolen

vehicle consequent upon which the lower Court applied the doctrine of recent possession enshrined in Section 167 (a) of the Evidence Act. Hear the lower Court at page 61 of the Records:
“Now was the Accused person involved in the robbery incident?
The critical point that will lead to resolution of this issue or third ingredient is a determination of the question whether the car was found in his possession or not.
As stated by Learned State Counsel, the law is settled under the provisions of Section 167 (a) of the Evidence Act is that a man found in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession, and which position the Courts have truly restated in a plethora of cases including AFOLABI vs. THE STATE (supra).
Now is there evidence before the Court that the Accused person was found in possession of the stolen vehicle which is not in doubt was stolen from PW1 and later released to him on bond.
The evidence showing that the Accused person was found with the car at Canaan Land solely comes from Exhibit A, the confessional

statement of the Accused person as PW1’s evidence that the Accused person was at the wheel of the car when he went to identity the car at Canaan Land is discountenanced as he was not there when the Accused person was allegedly arrested with the car.”

The lower Court after setting out a periscope from the confessional statement of the Appellant and expounding the law on the reliance by a Court on a retracted confessional statement, the lower Court continued at page 64 of the Records stating:
“The facts as reviewed above thus show that the confession is possible as the statement, Exhibit A show a narration of the robbery though slightly disparate, which is however not fatal in this case as such are minor discrepancies not sufficient to amount to material contradictions as there is corroboration of the relevant pieces of his statement in the evidence of PW1. I thus find that his confessional statement show that he was involved heavily in the robbery and that the fact that he was arrested with the vehicle so soon after the robbery incident in the circumstances of this case leads to no other conclusion that he was one of those who robbed

PW1.
Although PW1 in his evidence described the Accused person as the leader of the gang who came into the house and brought out a gun during the robbery which facts are however not contained in Exhibit A as to whether any of them and who was armed with a gun, or whether he entered PW1’s house or not, these do not detract from the probative value of the evidence reviewed above.”
The lower Court then conclusively held as follows at page 67 of the Records:
“I must thus agree with submission of Learned counsel for the Prosecution that the recovery of the stolen vehicle from the Accused person shows that he was one of the robbers that robbed PW1 of his vehicle.
I thus also do not find the evidence on oath of the retraction of his confessional statements credible as I hold that his evidence on oath is an afterthought as the evidence which is contained in his confessional statement is far more credible and of probative value as it was made not so long after his arrest, indeed within a week of the robbery incident rather than his evidence on oath made on 23rd January, 2019, over 6 years after the incident.
I also hold that

3rd ingredient that he was involved in the robbery has also been proved by a combination of the three modes of proof of the eye witness account of PW1, the confessional statement Exhibit A, and the circumstantial evidence of finding the vehicle in the Accused person’s possession without a reasonable explanation of it of his possession of the vehicle from the above reviewed evidence that he and others now at large robbed PW1.
I thus hold that the Prosecution has proved the commission of the offence of armed robbery against the Defendant.”

In faulting the decision of the lower Court, the Appellant contends that the confessional statement does not admit or suggest that the Appellant committed the crime in order for it to be a confession within the meaning of Section 28 of the Evidence Act. The Appellant predicates the contention on the fact that while the crime was said to have been committed on 2nd August 2012, the Appellant’s retracted confessional statement, Exhibit A, narrates events which transpired on 3rd August 2012.

The particulars of the offence for which the Appellant was tried and convicted in Count II of the Charge

reads as follows:
“PARTICULARS OF OFFENCE
ABAYOMI ISHOLA (M) and others now at large on or about the 2nd day of August, 2012 at Km 14 Idiroko road, Iju-Ota in the Ota Judicial Division while armed with gun robbed Pastor Ayileke Olaniyi of his Toyota Camry Car with registration number NU 659 AAA.”
(Underlining supplied)

Critical in the resolution of the contention in this regard is the underlined phrase “on or about” employed in the Charge. Happily, there exists judicial decisions on the meaning of this phrase when it is employed in a Charge. In AWOPEJO vs. THE STATE (2000) 6 NWLR (PT 659) 1 at 13, this Court (per Amaizu, JCA) stated as follows:
“It is common ground that the charge on which the appellants were arraigned alleges that ‘on or about the 29th day of September, 1993, the appellants caused the death of one Alhaji Issa…’
It is suggested that because of the evidence before the Court that the deceased was murdered on 30/9/93… One may ask what does the phrase ‘on or about 29th September, 1993’ in the charge mean. Does it mean that the offence was committed

precisely on 29th day of September, 1993? I do not think so. This is because the word ‘or’ when used in a sentence introduces an alternative and it is sometimes used to express uncertainty about a thing. On the other hand, the word ‘about’ means ‘a little more or less than’, ‘a little before or after’. See Oxford Advanced Learners Dictionary. It is because of this that when the phrase ‘on or about’ is used in a charge it is not necessary to prove the precise date the alleged offence was committed.”
See also REX vs. ERONINI 14 WACA 366 and AKPA vs. THE STATE (2006) LPELR (7603) 1 at 22-23. Recently in MUHAMMED vs. THE STATE (2020) LPELR (51006) 1 at 10-13, Daniel-Kalio, JCA, forcefully stated the legal position, inter alia, as follows:
“With regard to the argument that the contents of the confessional statements did not reflect the commission of the crime having regard to the time of the commission of the crime as stated in the Charge, a look at the wording of the Charge as regards the time of the commission of the crime shows that it is not very specific as to the time of the

crime. The charge reads…
‘on or about the 23rd day of November, 2016…’. Now, the phrase ‘on or about’ has received judicial interpretation in a number of cases. …where the phrase ‘on or about’ is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It is clear to me that the phrase ‘on or about’ is used to indicate an approximate time or location. When used in a charge, … It is to prevent a variance between the charge and the proof of the charge whether through a confessional statement or some other evidence. Thus, the argument of the Appellant’s Learned Counsel that the lower Court should not have given credence to the confessional statements of the Appellant because their content as to the date of the commission of the crime is not in harmony with the date of the commission of the crime as stated in the charge, is misconceived.”
See also VEEPEE INDUSTRIES LIMITED vs. COCOA INDUSTRIES LTD (2008) LPELR (3461) 1 at 20.

By all odds, the law is settled that the offence charged having been committed ‘on or about the

2nd day of August, 2012” is approximate enough to accommodate the Appellant’s confession of having committed the offence in his statement, Exhibit A, wherein the date 3rd August, 2012 is referred to. The Appellant’s contention in this regard is misconceived.

The Appellant further contended that the confessional statement having been retracted, there was no other evidence outside the confession on which the veracity of the confessional statement could be ascertained. Undoubtedly, the legal position is that a Court cannot act on a retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence, however slight, or circumstances which make it probable that the confession is true: R vs. SYKES (1913) 1 Cr. App. R 233, NWAEBONYI vs. THE STATE (supra), AKINMOJU vs. THE STATE (2000) 4 SC (PT. I) 64 at 81 and UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188-189. The lower Court was obeisant to the prescriptions of the law in this regard. This is how the lower Court approached the issue at pages 63-64 of the Records:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The Accused person however in his evidence on oath retracted this confession and put up another story as reviewed above as I must perforce not rely on his evidence on oath as it is a clear retraction of his confessional statements Exhibits A as the law is settled that the retraction of a confessional statement by an accused person in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied as to the confession and can rely solely on the confessional statement to ground a conviction…
It is thus apposite at this stage to consider the confessional statements of the Accused person and consider whether it can pass the tests laid down to ascertain its truth by looking for other evidence outside it, no matter how slight in order to ascribe probative value to it. The tests so laid down which are herewith reproduced are contained in the Supreme Court decision of DAWA & ANOR & VS THE STATE (1980) 8-11 S.C. 147
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as they can be

tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
An appreciation of the direct or eye witness evidence of the complaint and the recovery of the vehicle at Canaan Land junction where the Accused person was arrested is corroborative of the confessional statement of the Accused person as regards the under mentioned:
• That 2 robbers entered into PW1’s house and took the car keys and went but came back after a while to ask him to start the car as the Accused person gave evidence that others started the car.
• That a total of 4 men went to rob PW1 as stated by the Accused person.
• That his car, a Toyota Camry Car was driven away that night by the robbers, and that the car was recovered at Canaan Land junction almost immediately thereafter and which vehicle he also identified at Canaan Land.
• That PW1 at the time he went to identify the vehicle also saw the Accused person at the steering wheel of the vehicle although having been arrested by the

Police.
The facts as reviewed above thus show that the confession is possible as the statement, Exhibit A show a narration of the robbery though slightly disparate, which is however not fatal in this case as such are minor discrepancies not sufficient to amount to material contradictions as there is corroboration of the relevant pieces of his statement in the evidence of PW1.”

I have gone through the evidence on record with the aid of a judicial toothcomb and the findings of the lower Court that there exists other evidence outside the confession which show that the confession is possible is unimpeachable.

In further contending that the confessional statement did not admit that the Appellant committed the crime charged, it was further argued that the Appellant never admitted in the statement that he entered the house of the PW1 but stated that he rode one of the motorcycles on which he and his cohorts went to the residence of the PW1, but that he stayed outside and that when they came out from the house, they handed him the Toyota Camry car key and told him to drive the car. This, however, would not exculpate the Appellant from culpability

for the offences charged. The Appellant, by operation of law, is a principal offender and remains liable as such. Section 6 (a) and (b) of the Robbery and Firearms (Special Provisions) Act, the enactment under which the Appellant was charged, tried and convicted provides thus:
“6. Any person who –
(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act; or
(b) conspires with any person to commit such an offence; or
(c) …………………………..
whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”
See ADEKOYA vs. THE STATE (2017) LPELR (41564) 1 at 18, ODEWOLE vs. THE STATE (2021) LPELR (52833) 1 at 24 and ALIU vs. THE STATE (2021) LPELR (53354) 1 at 40-42. So irrespective of whether the Appellant was present inside the house when the offence was committed or not he is a principal offender and shall be liable to be

convicted as one of the robbers.

The Appellant has made a kerfuffle of the application by the lower Court of the doctrine of recent possession. There is evidence on record that on the same day of the robbery incident, after the robbers had made their getaway with the stolen vehicle, the Appellant was arrested with the stolen vehicle. Section 167 (a) of the Evidence Act 2011 enacts as follows:
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that –
(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

The above stipulation which enacts the doctrine of recent possession is a rebuttable presumption of fact. Presumptions of fact are logical inference drawn from other known facts. By the provision the presumption that the person in possession of stolen

goods soon after the theft is either the thief or the receiver of the stolen goods, is rebutted where the person can account for his possession of the goods. The legal consequence of arriving at a presumption is to call on the Appellant to produce contrary evidence. For the doctrine to operate there ought to be evidence:
1) That the person was found in possession of some goods.
2) That those goods were recently stolen.
3) That the person failed to account for his possession of the goods.
See EZE vs. STATE (1985) LPELR (1189) 1 at 11-13 or (1985) 3 NWLR (PT. 13) 419 at 436, EHIMIYEIN vs. THE STATE (2016) LPELR (40841) 1 at 29-30 and MADAGWA vs. THE STATE (1988) LPELR (1804) 1 at 49-51. Where there is enough explanation as to how the person came by the property, the presumption will not apply. In STATE vs. NNOLIM (1994) 6 SCNJ 48 or (1994) 5 NWLR (PT. 345) 394 at 410, Adio, JSC stated as follows:
“An explanation by the accused person of the way in which a stolen property came into his possession which might be reasonably true and which is consistent with innocence, although the Court may not be convinced of its truth would displace the presumption.”

Consequently, an accused person may rebut the presumption by giving evidence on the balance of probability and where the explanation is reasonable the onus on the accused person is discharged and the presumption will not apply. See YONGO vs. COP (1990) 5 NWLR (PT. 148) 103 and OMOPUPA vs. STATE (2007) LPELR (8571) 1 at 28.

As already stated, the lower Court applied the doctrine of recent possession in convicting the Appellant as it was not satisfied that the explanation of the Appellant was consistent with innocence. The possession of the stolen vehicle was truly recent in light of the proximity of time in the robbery and when the vehicle was recovered from the Appellant; indeed, it was the same day of the robbery. In the circumstances, it was therefore open to the lower Court to convict the Appellant for the offence as there was the further evidence to buttress the application of the doctrine in the eyewitness testimony of the PW1 which put the Appellant at the scene of crime, the circumstantial evidence of the Appellant being apprehended with the vehicle, which is strengthened by the confessional statement of the Appellant

that the vehicle was recovered from him; which confessional statement, though retracted, has ample corroboration from the other evidence, outside the confession adduced by the Prosecution and as rightly found and held by the lower Court. See GBADAMOSI vs. THE STATE (1992) LPELR (1313) 1 at 18-19, THE PEOPLE OF LAGOS STATE vs. UMARU (2014) LPELR (22466) 1 at 51-52 and KOLAWOLE vs. THE STATE (2015) LPELR (24400) 1 at 50.

The Appellant makes a foofaraw with his contention that there is a contradiction between the evidence adduced by the PW2 in Court and the Additional Proof of evidence filed in respect of what the PW2 would testify on and that the doubt raised as a result of the contradiction ought to be resolved in favour of the Appellant. I am not enthused by this contention. It is rudimentary law that proofs of evidence are mere summaries of statements of witnesses to be called by the Prosecution and it is settled law that they are not pieces of legal evidence on which the Court acts. They are not pieces of judicial evidence in proof of a crime in the Court. See FRN vs. WABARA (2013) LPELR (20083) 1 at 20-21, DADA vs. FRN (2014) LPELR (24255) 1 at 15,

IDAGU vs. THE STATE (2018) LPELR (443443) 1 at 38 and ERHADAVWE vs. THE STATE (2020) LPELR (52418) 1 at 64. Accordingly, the summaries of statements by a witness in the proof of evidence not being a piece of legal or judicial evidence which a Court can act upon, cannot be equated to the testimony of a witness given in Court under oath and subjected to the crucible of cross examination such that it can be said that there is a contradiction between the testimony of the witness in Court and what is summarised in the proof of evidence. No! That is not the Law as I know it.

The Appellant invoked the principle of withholding evidence arguing that the witnesses from Onipanu Police Station where he was taken to upon his arrest and the statement he made thereat were not tendered in evidence. For good measure it was posited that the evidence if produced would have been unfavourable to the Respondent. The case of the Respondent is that after the Appellant was arrested, he was taken to Onipanu Police Station and thereafter the case file, the Appellant and the real evidence, the car, were transferred to State CID Eleweran. So it is effulgent that the prosecution of

the Appellant is based, not on the investigation at Onipanu Police Station which was not completed, but on the investigation carried out at State CID Eleweran after which the Appellant was charged to Court.

It is abecedarian law that the prosecution is not required to call every available piece of evidence to prove its case. It suffices if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. See ODILI vs. THE STATE (1977) LPELR (2221) 1 at 10, THEOPHILUS vs. THE STATE (1996) LPELR (3236) 1 at 18-19, AFOLALU vs. THE STATE (2010) LPELR (197) 1 at 32-33 and MUKORO vs. FRN (2015) LPELR (24439) 1 at 27. The Prosecution has a discretion when it comes to who to call as a witness: ADAJE vs. THE STATE (1979) 6-9 SC 18 at 28. Where the Appellant considered that any potential witnesses from Onipanu Police Station was a vital witness, then the Appellant should have called such a witness and not expect the Prosecution to call him, when nothing stopped the Appellant from calling him. See NWAEZE vs. THE STATE (1996) 2 NWLR (PT. 425) 1 at 15, ASARIYU vs. THE STATE (1987) 4 NWLR (PT. 67) 709, OGBODU vs. THE STATE (1987) 2 NWLR (PT. 54) 20 and

EZE vs. THE STATE (2013) LPELR 1 at 29.

Let me state that I have given due consideration to the case of OGUDO vs. THE STATE (supra), also reported in (2011) LPELR (860) 1 at 28, 60-61. The Apex Court therein explicitly held that the prosecution is expected to tender all the statements made by the accused person to the Police whether at the time of his arrest or subsequently since to deprive the accused person standing trial for an offence which carries the death penalty the use of the statement he made to the Police renders the trial unfair and that it would be in order in such an instance to invoke the principle of withholding evidence against the prosecution. In the said case of OGUDO vs. THE STATE (supra) it was in evidence that the appellant therein made a statement at the first Police Station he was taken to upon his arrest, which statement was not tendered in evidence.

Facts are the fountainhead or arrowhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of

context and giving it a general application if it is sought to apply the decision to totally different facts. Therefore, the principle laid down in OGUDO vs. THE STATE (supra) and relied upon by the Appellant will only be applicable where the diacritical facts of this matter are the same as the facts that induced the decision in the said case. See ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100, FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558 at 650, ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 31, OKOYE vs. COP (2020) LPELR (50102) 1 at 26 and EZEOGWUM vs. COP (2020) LPELR (50103) 1 at 26.

For the principle relied upon by the Appellant to avail, the evidence on record has to show that the Appellant made a statement at the Onipanu Police Station. I have insightfully gone through the testimonial evidence on record and there is nothing in the evidence to the effect that the Appellant made a statement at the Onipanu Police Station. The Appellant’s testimony as to what transpired at Onipanu Police Station is at page 50 of the Records. The Appellant stated:
“We and others stated that we were coming from work but we were driven to

Onipanu Police Station where we were ordered to lie face down on the ground on getting from the bus and directed to march into the station when we were touched. When I was touched I saw others already filing into the police station. We were being disposed of our belts, wallets, phones etc and pushed behind the counter and put in a cell, a lot of us were put in the cell. I found out the next morning that about 16 of us were arrested the previous night. We were brought out from the cell the next day and were asked to pay N15,000.00 but 6 of us could not pay it. Then later one man was brought to come and identify people. The man said that he could not identify those that came to his house when a policeman striped me down that he was not the one to teach them how to do their job. The said man had earlier came to give evidence in this case before. The man now went away but the policeman came back threatening to make us confess as we continued to plead with them we were coming back from work. We were taking to a store like room which had generators and was asked to strip when one man came and said our case should be transferred to SCID Eleweran that afternoon and

taking to one office where we were handcuffed till evening time and I was taken inside the cell known as cooler.”

The Appellant was even more categorical that he did not make any statement at Onipanu Police Station when he testified thus under cross examination at pages 50-51 of the Records:
“I was arrested at about 7pm by policemen and taken to Onipanu police station. I did not made a statement to the policeman who arrested us, the policemen handed us over the police officer at the police counter. About 3 or 4 of us were transferred to Eleweran in respect of his case.”

It is translucent that the evidence on record is that the Appellant did not make any statement at Onipanu Police Station. I do not lose sight of the Proof of Evidence on page 4 of the Records where one Cpl Folorunso Akeem was listed as witness to testify on the investigation activities he carried out at Onipanu Police Station and tender the Statement the Appellant made. The said Cpl Folorunso Akeem was not called as a witness. The summary of what he is to testify to, contained in the proof of evidence, is not judicial evidence on the basis of which a Court can

hold that the prosecution failed to tender the statement volunteered by the Appellant at Onipanu Police Station: IDAGU vs. THE STATE (supra), FRN vs. WABARA (supra) and DADA vs. FRN (supra). The evidence on record which a Court can act upon in the circumstances of this matter is the Appellant’s testimony that he did not make a statement at Onipanu Police Station.

It seems to me that every blade of grass in the field of this judgment has been tended and groomed. The destination and fate of the appeal is evident from the totality of the foregoing. It is Nunc Dimittis. In conflation, the sole issue for determination as distilled by the Court is resolved against the Appellant. The appeal is devoid of merit. It therefore fails and it is accordingly dismissed. The judgment of the lower Court dated 18th June 2019 in respect of CHARGE NO. HCT/8R/2015: THE STATE vs. ABAYOMI ISHOLA is hereby affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Lead Judgment of my Lord UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered and I agree with the reasons given as well as the conclusion that the appeal lacks merit.

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For reasons so ably set out in the Lead Judgment, I also dismiss this appeal and affirm the Judgment of the Trial Court delivered on 18/6/2019 in Charge No: HCT/8R/2015.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading before now the draft of the lead Judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I agree entirely with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed.
I also dismiss the appeal and affirm the Judgment of the trial Court.

Appearances:

T. Ogunniyi, Esq. with him, Miss R. A. Sulaimon For Appellant(s)

Mrs. F. E. Bolarinwa-Adebowale For Respondent(s)