MUKAILA v. STATE (2022)

MUKAILA v. STATE

(2022)LCN/17155(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/IB/261C/2020

Before Our Lordships:

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

MONSURU MUKAILA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

In a criminal trial, the law is trite that the burden rests on the Respondent from beginning to the end of trial and the standard of proof is beyond reasonable doubt, see ABDULLAHI V. STATE (2008) LPELR-28 (SC) wherein the apex Court held thusly:
”It is settled law that in a criminal trial the onus remains with the prosecution to prove or establish the charge against the accused person(s) beyond reasonable doubt and that the onus or burden of proof never changes/shifts. See the case of Ahmed v. The State (2001) 12 S.C. (Pt.I) 135; (2003) 3 ACLR 145 at 177, Anekwe v. The State (1998) ACLR 426 at 433, Obiakor v. The State (2002) 6 S.C. (Pt. II) 33; (2002) 6 SCNJ. 193.” Per ONNOGHEN, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT EVERY OFFENCE MUST BE ESTABLISHED BY EVIDENCE BEFORE A CONVICTION CAN STAND

It is also settled that every offence named in a written law has ingredients that must be established by cogent evidence before a conviction can stand, all ingredients must have evidence to support it, see RICHARD V. STATE (2018) LPELR-45157 (SC) wherein the apex Court held thusly:
“… in Iliyasu v State (2015) LPELR-24403 (SC) 25; B – G, this Court [per Nweze, JSC] held that: The constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 – 7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v. State (1996) 4 NWLR (Pt.428) 1, 125.” Per NWEZE, J.S.C
Also in HARUNA V. AG FEDERATION (2012) LPELR-782 (SC) the apex Court held thusly:
“… It is indisputable that the prosecution must prove all ingredients of the offence against the appellant beyond reasonable doubt. Ubani v. State (2003) 18 NWLR pt.851 pg.24, Uguru v. State (2002) 9 NWLR pt.771 pg. 90. Igabele v. State (2006) 6 NWLR pt.975 pg.100, Adara v. State (2006) 9 NWLR pt.984 pg.155.” Per ADEKEYE, J.S.C. PER NIMPAR, J.C.A.

THE POSITION OF LAW ON THE OFFENCE OF ARMED ROBBERY

Armed robbery is defined by the apex Court thusly:
“…In effect, armed robbery simply means stealing plus violence, used or threatened.”
See EKE V. STATE (2011) LPELR-1133(SC), ARUNA V. THE STATE (1994) 6 NWLR (PT. 155) 125 and AMINU TANKO V. THE STATE (2009) 1- 2 SC (PT. 1) 198 AT 223.
Also in STATE V. ISIAKA (2013) LPELR-20521 (SC) wherein the apex Court also held thusly:
“What is Armed Robbery?” “Armed Robbery” for our purpose here will only be looked at from the stand point of the Robbery and Firearms (Special Provisions) Act Cap. R 11, Laws of the Federation of Nigeria, 2004. The simplest breakdown of Armed Robbery is to rob with arms. What then is “Robbery” and what constitutes “arms” The word “Robbery” under the Act 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 to its being stolen or retained.” The word “steal” is encapsulated in the definition of the word “Robbery” under the Act. The Act goes on to define the word “steal” as – “To take or convert to one’s use or to the use of any other person, anything other than immovable property with any of the following intents: a) an intent permanently to deprive the owner of the thing of it. b) an intent permanently to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit. c) an intent to use the thing as a pledge or security. d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform. e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion. f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” As regards the word “Arms” there is a clear subdivision of that term under the Act into “firearms” and “other offensive weapons.” “Firearms” include the following – cannon, gun, rifle, carbine, machine gun, cap gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearms whether whole or detached pieces.” “Other offensive weapons” under the Act are made to refer to “any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal glass or stone capable of being used as an offensive weapon.” Per ALAGOA, J.S.C.
The offence of armed robbery requires the Respondent to prove the following ingredients:
a. That there was a robbery;

b. That the robbers were armed with offensive weapons as at the time of the robbery; and

c. That the accused person participated in the robbery. PER NIMPAR, J.C.A.

THE POSITION OF LAW ON IDENTIFICATION PARADE IN CRIMINAL JURISPRUDENCE

What is an identification parade in criminal jurisprudence? In ALUFOHAI V. STATE (2015) 7 NWLR (PT. 1445) P.72 at 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. See BABALOLA V STATE (2021) LPELR-53997 (CA).

Identification parade becomes necessary under particular circumstances and is not for all times. See SANUSI V. STATE (2019) LPELR-48193 (CA) where the Court on when identification parade becomes necessary, held thusly:
“The Supreme Court while shedding light on when an identification parade becomes necessary held in the case of WISDOM VS. THE STATE (2017) 7 NWLR (PT. 1586) 446 AT 468 PARAS B – F as follows: “In AKEEM AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619; (2013) 85 SCM 157 (2013) ALL FWLR (PT. 714) 139. In this Court, I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time where the victim might not have the opportunity of observing the features of the accused. An identification parade would become necessary only in the following situations of visual identification;
i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence;
ii) Where the victim was confronted by the offender for a very short time; and;
iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See R V TURNBULL (1976) 3 ALL ER 549 (1977) QB 224 AT 228; IKEMSON & ORS. VS. THE STATE (1989) 1 CLRN 1 (1989) 3 NWLR (PT. 110) 455″. It follows therefore that the guiding principle for the conduct of an identification parade envisage circumstances where the accused is not known to the Complainant before the alleged commission of a crime and/or where it is impossible for him to recognize the accused after the commission of the crime due to the circumstances in which the crime was committed. An identification parade becomes necessary when there is real dispute about the identity of the accused person. In NDUKWE VS. THE STATE (2009) LPELR 1979 (SC), the Supreme Court held thus: “In summary, an identification parade is limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged.” Per OJO, J.C.A
An identification parade therefore becomes necessary only when there is real dispute about the identity of the accused person. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The Respondent arraigned the Appellant and another for armed robbery and conspiracy. Trial went on and at the end, the trial Court found that the Respondent proved its case. This appeal is against the decision of the High Court of Ogun State sitting in Abeokuta and delivered by HON. JUSTICE P. F. ODUNIYI on the 20th May, 2020 in Suit No.: AB/21R/2017 wherein the lower Court found the Appellant guilty and convicted the Appellant and the 2nd Accused person on counts (i), (ii) and (iii) of the information sheet and sentenced him to death by hanging under Section 6(b) of the Armed Robbery and Firearms (Special Prohibition) Act. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated on 7th August, 2020 setting out 16 grounds of appeal.

Facts leading to this appeal are straightforward and amenable to brief summary. The Appellant along one Abdullahi Ogundijo (2nd Accused) were arraigned on the 26th October, 2017 on a five count charge of conspiracy and armed robbery contrary to Section 6 (b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 11, Laws of the Federation of Nigeria, 2004.

The Information reads:
1. MONSURU MUKAILA (M)
2. ABDULLAHI OGUNDIJO (M)
Are charged with the following offences:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit Armed Robbery, contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division conspired to commit Armed Robbery.
STATEMENT OF OFFENCE – 2ND COUNT
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed a site belonging to one Mrs. Elizabeth Popoola of 4 (20kg) binding wire valued at Two Million, Two Hundred and thirty-four Thousand Naira (N2,234,000.00) iron rods, three mobile phones and the sum of forty-five thousand Naira (N45,000.00)
STATEMENT OF OFFENCE – 3RD COUNT
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Bala Musa (M) of the sum of Fifteen Thousand Naira (N15,000.00) and a mobile phone.
STATEMENT OF OFFENCE – 4TH COUNT
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Emmanuel Ilya (M) of the sum of Fifteen Thousand Naira (N15,000.00) and a mobile phone.
STATEMENT OF OFFENCE – 5TH COUNT
Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Rabiu Ibrahim (M) of his mobile phone valued at Seven Thousand Naira (N7,000.00).

The Appellant testified for himself while the Respondent called 4 witnesses and tendered Exhibits A, B, C, D-D6, E, F, G, H, J, K1, K2 and L. After due consideration, the trial Court convicted and sentenced the Appellant to death by hanging. 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 OLATUNDE OLADELE, ESQ., is dated 5th day of February, 2021 filed on the same day. The Appellant distilled 5 issues for determination as follows:
1. Whether or not the Appellant committed the offence of Armed Robbery (Distilled from grounds 1, 3, 4, 5 and 14)
2. Whether or not the testimony of the Respondent’s witnesses are contradictory and unreliable to lead to the conviction of the Appellant (Distilled from grounds 6, 10 and 13 grounds).
3. Whether the learned trial Judge ought to have relied on the confessional statements of the Appellant in convicting the Appellant. (Distilled from grounds 7, 8 and 9)
4. Whether or not the Respondent has satisfactory discharged the burden of proving the guilt of Appellant.
5. Whether or not the learned trial Judge ought to have convicted the Appellant for the offence of armed robbery and sentenced him to death by hanging pursuant to Section 2(a) and Section 6(b) of the Robbery and Firearms (Special Provision) Act. (Distilled from grounds 16)

The Respondent’s brief settled by BABAJIMI AYORINDE, ESQ., is dated 27th day of October, 2021 filed on the same day but deemed on the 15 March, 2022. The Respondent formulated 5 issue of determination as follows:
1. Were there any contradictions in the evidence of the prosecution witness.
2. Was an identification parade necessary in the circumstances of this case.
3. Was Exhibit K2 the basis of the lower Court’s conviction of the Appellant
4. Was the failure to call Saheed Ishola fatal to the prosecution’s case.
5. Did the prosecution prove the guilt of the Appellant beyond reasonable doubt.

Thereafter the Appellant filed a reply brief dated 14th day of March, 2022 but deemed on the 15th March, 2022.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant argued that the Respondent failed to prove beyond reasonable doubt the ingredients of the offence of armed robbery by not proving sufficiently that the Appellant was armed when he entered the premises at Kajola. The Appellant went on to define the offence of armed robbery as held in UGWU V. STATE (2020) 7 NWLR (PT. 1723) 259, OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561 and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 389 Laws of the Federation of Nigeria, 1990 and submits that even though the testimony of PW1 was an eye witness account of the incident it was fraught with discrepancies, inconsistencies and contradictions, one of which is failure of PW1 to give vivid details of how he was able to specially identify the Appellant from the gang of armed robbers that attacked him. The Appellant relied on OCHIBA V. STATE (2011) 17 NWLR (PT. 1277) 663 and BOTU V. STATE (2018) 3 NWLR (PT. 1607) 410.

Continuing, the Appellant submits that his identity was in issue and the evidence of PW1 on the Appellant’s identity is weak because by the circumstance of the attack it was impossible for PW1 to recognize the persons that attacked him. The Appellant further argue that the Respondent ought to have conducted an identification parade to ascertain the identity of the Appellant as failure to lead evidence of identification parade is fatal. The Appellant also relied on STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397, AFOLALU V. STATE (2010) 16 NWLR (PT. 1220) 584 and AJILORE V. STATE (1993) 4 NWLR (PT. 289) 572. Furthermore, the Appellant submits that the Respondent failed to link the Appellant with the crime by failing to carry out an identification parade, therefore, the judgment of the trial Court is perverse and should be set aside by the Court. The Appellant urged the Court to resolve this issue in his favour.

ISSUE TWO
Arguing this issue, the Appellant reproduced the evidence of PW1, PW2, PW3 and PW4 (See page 39 and 101 of the record of appeal) to show the contradictions contained therein and submits that the existence and use of dangerous weapon is fundamental to an offence of armed robbery but was not proved by the Respondent. The Appellant cited USUFU V. STATE (2007) 3 NWLR (PT. 1020) 94. Continuing, the Appellant submits that the Respondent failed and refused to establish that the weapons tendered as Exhibits F, G, and H were used in the commission of the offence charged and was used by the Appellant. The Appellant relied on STATE V. IBRAHIM (2019) 9 NWLR (PT. 1676) 137.

According to the Appellant, it was Saheed Ishola that engaged his services to transport goods from Mowe to the Ojodu for the sum of N35,000.00, thereafter, he moved to crime scene on the instruction of Saheed Ishola to carry the iron rods unfortunately, he was arrested. The Appellant placed reliance on AMEH V. STATE (2018) ALL FWLR (PT. 1632) 99, ANI V. STATE (2009) 16 NWLR (PT. 1168) 443 and AZEEZ V. STATE (2005) 8 NWLR (PT. 927) 312 to submit that it is the duty of the prosecution to call material witnesses and Saheed Ishola is a material witness because his evidence will resolve the issue of whether or not it was him who engaged the services of the Appellant to carry iron rods from Kajola to Ojodu Berger, therefore failure to call Saheed Ishola and the Police officer that arrested the Appellant amount to withholding of evidence as provided in Section 167 of the Evidence At, 2011. The Appellant further submits that though his act seems as if he is guilty, there was no criminal intention. The Appellant referred the Court to IBRAHIM V. STATE (1993) 2 NWLR (PT. 278) 735, IMHANRIA V. NIGERIAN ARMY (2007) 14 NWLR (PT. 1053) 76, ADEKUNLE V. STATE (2002) 4 NWLR (PT. 756) 169, EJIDE V. STATE (2019) 14 NWLR (PT. 1692) 246, SALE V. STATE (2016) 3 NWLR (PT. 1499) 393 and ABEKE V. STATE (2007) 9 NWLR (PT. 1040) 411.

Furthermore, the Appellant relying on JIMMY V. STATE (2013) 18 NWLR (PT. 1386) 229 submitted that the trial Judge was in error to have held at page 31 of the judgment that the contradictions in the case of the Respondent are mere discrepancies and urged the Court to resolve this issue in favour of the Appellant.

ISSUE THREE
In arguing issue three, the Appellant restated the ways that an accused person may retract a confessional statement as held in NWOKEARU V. STATE (2010) 15 NWLR (PT. 115) 1 and OSENI V. STATE (2012) 5 NWLR (PT. 1293) 351 and submits that he did not make the confession in Exhibit K1 and K2 as they are credited to him by the Respondent. The Appellant argued that where there is conflict in the evidence of the Respondent’s case, the Court will take and believe the version that is favourable to the accused as held in OSHODIN V. STATE (2001) 12 NWLR (PT. 726) 217, therefore, the trial Court ought to rely on Exhibit C which is favourable to the Appellant and discountenance Exhibits K1 and K2.

The Appellant restated the principle of inconsistency rule as held in OKEKE V. STATE (1994) 4 NWLR (PT. 392) 676, EGBOGHONOME V. STATE (1993) 7 NWLR (PT. 306) 383, AKPAN V. STATE (2000) 12 NWLR (PT. 682) 607 and KAREEM V. F.R.N (2002) 8 NWLR (PT. 770) 664 and argued that the inconsistency in the statement of the Appellant (Exhibit C) cannot be compared to the contradictions in Exhibits K1 and K2, therefore, Exhibits K1 and K2 should be treated as retracted confessional statements. Further on this issue, the Appellant submits that Exhibits K1 and K2 are contrary to Section 19(3) of the ACJL, Ogun State, 2017 and this was confirmed by the evidence of PW4 during cross-examination, therefore the trial Judge erred in law when he relied on the Appellant’s extra Judicial Statements which are manifestly unreliable and inadmissible. The Appellant relied on NNAJIOFOR V. STATE (2019) 2 NWLR (PT. 1655) 157 and OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561.

The Appellant urge the Court to review the judgment of the lower Court and resolve this issue in favour of the Appellant.

ISSUE FOUR
The Appellant submits that in criminal proceedings, the onus is on the Respondent to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary ingredients of the charge are proved by evidence. The Appellant relied on YONGO V. C.O.P (1992) 8 NWLR (PT. 257) 36, Section 135 and 139 of the Evidence Act, 2011. Continuing, the Appellant submits that the Respondent failed to establish by credible evidence that there was an agreement between the Appellant and the 2nd accused person to commit crime because aside the confessional statement of the Appellant and the 2nd accused person (Exhibits K1, K2 and L), there is no viable evidence that supports the fact that there was any conspiracy between the Appellant and 2nd accused person to commit any crime, therefore the essential ingredients of the offence of conspiracy which lies in bare agreement was not proved by the Respondent. The Appellant cited STATE V. GBAHABO (2019) 14 NWLR (PT. 1693) 522, IKWUNNE V. STATE (2000) 5 NWLR (PT. 658) 550, OFORLETE V. STATE (2000) 12 NWLR (PT. 681) 415 and CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686.

The Appellant relied on AFOLAHAN V. STATE (2018) 8 NWLR (PT. 1621) 223 to urge the Court to find that the Respondent failed to discharge the burden of proof that the Appellant committed the offence of armed robbery and the failure of the trial Judge to consider and examine a defence raised by the Appellant does not only raise reasonable doubt in the case of the Respondent but also amount to failure to perform a vital duty imposed on the trial Judge which will amount to a miscarriage of justice. The Appellant also urged the Court to resolve this issue in favour of the Appellant and to hold that the Respondent failed to prove their case beyond reasonable doubt at the trial Court.

ISSUE FIVE
According to the Appellant, in criminal proceedings, the Respondent must establish its case against the accused person beyond reasonable doubt and where there is any doubt in the case of the Respondent such doubt must be resolved in favour of the accused person as held in STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 439, CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686, IDEMUDIA V. STATE (2015) 17 NWLR (PT. 1488) 375 SALE V. STATE (2016) 3 NWLR (PT. 1499) 392 and BOTU V. STATE (2018) 3 NWLR (PT. 1607) 410. Continuing, the Appellant argued that the prosecution failed to discharge the burden of proof of the guilt of the Appellant and the 2nd accused person beyond reasonable doubt and the conviction of the accused person ought to be set aside by the Appellate Court. The Appellant submits that the case of the Respondent is without merit and should be dismissed; and the Appellant should be discharged and acquitted by the Court.

RESPONDENT’S SUBMISSION
ISSUE ONE
According to the Respondent, PW1 testified that dangerous weapons were recovered by the police officer when the Appellant was arrested but PW3 said that no ammunition was brought to the police station. The Respondent submits that this cannot be categorized as contradictions because there is a whole difference between weapons and ammunition and in the light of SOMEFUN V. STATE (2021) LPELR-54415 (CA) there was no contradiction between the evidence of PW1, PW3 and PW4 as it relates to the recovery of weapons from the Appellant and even if there are contradictions they are not so material to lead to the acquittal of the Appellant. The Respondent relied on WOWEM V. STATE (2021) LPELR-53384 (SC). Continuing, the Respondent argued that the policemen that rescued PW1 and collected the weapons from the Appellant were the policemen stationed near the scene of the crime (in Kajola), PW3 was the policeman on duty at Mowe police station when the robbery incident was reported by PW2 nine hours after it had occurred while PW4 was the police officer on duty at the State CID Eleweeran on 28/1/17 when the case was transferred from Mowe Police station.

It was the submission of the Respondent that the fact that a gun was not tendered in evidence does not mean that one was not used to commit crime and the Appellant with his cohort were armed with a cutlass, machete and hammer tendered as Exhibits F, G and H which are offensive weapons as held in GIKI V. STATE (2018) LPELR-43604 (SC) and IGHELE V. STATE (2018) LPELR-43929 (CA). The Respondent urge the Court to resolve this issue in favour of the Respondent by holding that there was no contradiction in the evidence given by the prosecution.

ISSUE TWO
The Respondent submitted that it is not in all instances that an identification parade must be carried out to ascertain the identity of an accused because where the accused was arrested at the crime scene and the confessional statement that admits the commission of crime along the testimony of the eye witness, it has become unnecessary to conduct identification parade as held in AMAECHI NJOKU V. THE STATE (2021) LPELR-53076 (SC) and OSARO NOMAYO V. THE STATE (2018) LPELR-44729 (SC). Therefore, based on the evidence of PW1, the confessional statement of the Appellant and the fact that the Appellant was arrested at the crime scene, the issue of identification parade was rightly dispensed with by the trial Court. The Respondent urged the Court to resolve this issue against the Appellant.

ISSUE THREE
In arguing this issue, the Respondent submits that the trial Court relied on PW1’s evidence because it was unshaken under cross-examination and the extrajudicial statement (Exhibit K2) made by the Appellant and his oral testimony were not reliable as the Appellant gave different accounts, therefore, the trial Court could not have relied on it to discharge the Appellant. The Respondent submits that the Appellant’s issue 3 and grounds 7, 8 and 9 of the notice of appeal are incompetent and should be discountenanced because the position of the law is that a ground of appeal or issue is incompetent if it does not arise from the judgment being appealed against as held in OHAJUNWA V. OBELLE (2008) 3 NWLR (PT. 1073) 52.

Continuing, the Respondent submits that at the time Exhibits K1 and K2 were sought to be tendered by the Respondent through PW4, the Appellant did not object to their admissibility as seen from the records of Appeal at pages 105, thus, it is too late for the Appellant to challenge the admissibility or voluntariness of the confessional statement at this point. The Respondent cited UWEH V. STATE (2012) LPELR-19996 (CA). It was the argument of the Respondent that the provision of Section 19(3) of the ACJL is unconstitutional, null and void on the grounds that the issue of admissibility of evidence is covered under item 23 of the Exclusive Legislative list in the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 and only the National Assembly can legislate on the items in the Exclusive Legislative List, therefore, the admissibility or otherwise of Exhibit K2 is an issue of evidence and the ACJL, being a law enacted by the House of Assembly of Ogun State cannot determine the admissibility of Exhibit K2. The Respondent relied on ADIO V. FEDERAL REPUBLIC Of NIGERIA (2021) LPELR-54517 (CA) and OYENIYI V. STATE OF LAGOS (2019) LPELR-46525 (CA) to urge the Court to resolve issue three in favour of the Respondent.

ISSUE FOUR
It was the argument of the Respondent that it successfully proved the guilty act and mind of the Appellant by proving that the Appellant was arrested at the crime scene and also that he participated in the criminal act, therefore, the evidence of the Appellant that he was engaged by Saheed Ishola is immaterial because it is clear that the Appellant and his cohorts used violence and offensive weapons on PW1 in order to steal the iron rods. Continuing, the Respondent submits that failure to call Saheed Ishola was not fatal to the case of the Respondent on the grounds that the prosecution has proved that the Appellant committed the crime and Saheed Ishola is not a material witness. According to the Respondent, the material witnesses were before the Court and by their evidence the case of the Respondent was established, therefore, there was no need to call a host of witnesses as held in FAFURU V. STATE (2016) LPELR-41410 (CA) and OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561.

Furthermore, the Respondent urged the Court to discountenance the Appellant’s argument on this point and to resolve this issue in favour of the Respondent.

ISSUE FIVE
The Respondent submits that the case of ABELEGAH V. STATE (2015) LPELR-24793 (CA) stated the methods of proving the commission of a crime and that the Respondent has satisfied it through the eye witness account of PW1, further strengthened by the arrest of the Appellant at the crime scene and the confessional statement of the Appellant where he admitted commission of crime, the Respondent relied on ADELEKE & ANOR V. STATE (2011) LPELR-3606(CA) to further argue that the Respondent has proved armed robbery and that the Appellant was one of those who carried out the armed robbery and weapons recovered from the crime scene were tendered in Court. Therefore, the Respondent has indeed discharged the burden of proving the Appellant’s guilt through credible evidence.

It was the argument of the Respondent that from the evidence of PW1, it is clear that the Appellant formed a common intention with the 2nd accused and other members of his cohort to commit the armed robbery and it is trite that the agreement between two or more persons to commit an unlawful act may either be express or implied as held in SMART V. STATE (2016) LPELR-40728 (SC). Furthermore, the Respondent urged the Court to discountenance the Appellant’s argument, affirm the decision of the trial Court and resolve this issue in favour of the Respondent.

APPELLANT’S REPLY BRIEF
The Appellant in response to the Respondent’s brief submits that PW4 who recovered Exhibits F, G, H and J from the scene of the crime on the 3rd February, 2017 did that done about 10 days after the crime was reported at Ibafo Police Station, this contradicts the evidence of PW3 and the failure of the Respondent to resolve the inconsistencies in the testimonies of Respondent’s PW3 and PW4 as to whether the dangerous weapons Exhibit F, G, H, and J were recovered from the scene of crime and it should be resolved against the Respondent. The Appellant relied on BASSEY V. STATE (2012) 12 NWLR (PT.1314)209. Continuing, the Appellant argued that a party cannot introduce facts which were not led in evidence in Court and the Courts of law are never interested in assumptions in determining criminal responsibility as they are not the facts of the case, therefore the Respondent’s submission in paragraph 13 of its brief is a legal assumption and cannot be allowed in law as held in OKONKWO V. STATE (1998) 8 NWLR (PT. 561) 210 and NNEJI V. CHUKWU (1996) 10 NWLR (PT. 478) 265.

It was the submission of the Appellant that the trial Judge did not evaluate the evidence properly, especially as it relates to proof of the fact of whether the Appellant and the 2nd accused were part of the persons that carried out the acts of the alleged robbery and the evidence at the trial Court is that though he was present at the scene of the crime, he was there to render paid service to Saheed Ishola, who was never called as a witness by the Respondent at the trial Court. The Appellant relied on FATAI V. STATE (2013) 10 NWLR (PT. 1361) 1, ATIKU V. STATE (2010) 9 NWLR (PT. 1199) 241, STATE V. YANGA (2021) 5 NWLR (PT. 1769) 375, AYINDE V. STATE (2018) 17 NWLR (PT. 1647) and OKOIZEIBU V. STATE (2003) 11 NWLR (PT. 831) 327 to support his submission. Continuing, the Appellant contends that the identity of the Appellant was in issue and what the trial Judge ought to have done is to order for identification parade because the purpose of an identification parade is to search for the true identity of the person that committed the crime as held in NWABUEZE V. STATE (1988) 4 NWLR (PT. 85) 16, OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360, ORJI V. STATE (2008) 10 NWLR (PT. 1094) 31, AKPAN V. STATE (1992) 6 NWLR (PT. 248) 439, GODWIN IKPASA V. BENDEL STATE 1981 9 S.C., CHAN WEI KEUG V. QUEEN (1967) 2 AC 160, NWOCHA V. STATE (2012) 9 NWLR (PT. 1306) 571 and BARMO V. STATE (2000) 1 NWLR (PT. 641) 424.

Furthermore, the Appellant submits that Section 19(3) of the ACJL are procedural rules for the benefit of a suspect and therefore must be construed as being imperative and the procedural sections are usually mandatory and are often inserted for the benefit of the accused persons, therefore, failure to comply with the provision of Section 19(3) of the ACJL is fatal and it rendered the admissibility of Exhibit L a nullity as held in CHARLES V. FRN (2018) 13 NWLR (PT. 1635) 50, NNAJIOFOR V. FRN (2019) 2 NWLR (PT. 1655) 157, OKEGBU V. STATE (1979) 11 SC 1, KABIRU V. A. G. OGUN STATE (2008) LPELR-3617 (CA), DAWA V. THE STATE (1980) 8-11 SC 236, EMMANUEL V. FRN (2018) LPELR-50844 (CA); STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 439; OCHIBA V. STATE (2011) 17 NWLR (PT. 1277) 663 and AZUBUIKE V. STATE (2021) 11 NWLR (PT. 1786) 47.

Continuing, the Appellant submitted that to establish acts of conspiracy against the Appellant, there is need to consider the testimony of Saheed Ishola, who is the person that engaged the services of the Appellant and 2nd accused to carry out transportation services for him and failure to call Saheed Ishola is fatal. The Appellant relied on EGHAREVBA V. STATE (2007) 4 NWLR (PT. 26) 1, SMART V. STATE (2016) 9 NWLR (PT. 1518) 447 to support his argument and the conflicts, mix-up and contradiction in the prosecution’s case are fatal and substantial to warrant the setting aside of the judgment of the trial Judge. The Appellant referred the Court to NAMSOH V. STATE (1993) 5 NWLR (PT. 292) 129 and AZUBUIKE V. STATE (Supra) to urge the Court to allow the appeal of the Appellant set aside the judgment and discharge and acquit the Appellant.

RESOLUTION
I have considered the Notice of Appeal, the Records of Appeal and the briefs of respective Counsel in this appeal. The Appellant who is the party aggrieved with the judgment of the trial Court, donated 5 issues for determination and they disclose all the areas he wants the Court to consider. Being the party aggrieved, the Court shall adopt the issues formulated by the Appellant for resolution in this appeal, however, they shall be resolved seamlessly for expediency and to avoid repetition because most of the issues revolve around evaluation of evidence.

In a criminal trial, the law is trite that the burden rests on the Respondent from beginning to the end of trial and the standard of proof is beyond reasonable doubt, see ABDULLAHI V. STATE (2008) LPELR-28 (SC) wherein the apex Court held thusly:
”It is settled law that in a criminal trial the onus remains with the prosecution to prove or establish the charge against the accused person(s) beyond reasonable doubt and that the onus or burden of proof never changes/shifts. See the case of Ahmed v. The State (2001) 12 S.C. (Pt.I) 135; (2003) 3 ACLR 145 at 177, Anekwe v. The State (1998) ACLR 426 at 433, Obiakor v. The State (2002) 6 S.C. (Pt. II) 33; (2002) 6 SCNJ. 193.” Per ONNOGHEN, J.S.C.

The Respondent has 3 ways to establish its case in proving the guilt of the Appellant and it can employ any of the methods or a combination of any two in proving its case.

It is also settled that every offence named in a written law has ingredients that must be established by cogent evidence before a conviction can stand, all ingredients must have evidence to support it, see RICHARD V. STATE (2018) LPELR-45157 (SC) wherein the apex Court held thusly:
“… in Iliyasu v State (2015) LPELR-24403 (SC) 25; B – G, this Court [per Nweze, JSC] held that: The constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 – 7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v. State (1996) 4 NWLR (Pt.428) 1, 125.” Per NWEZE, J.S.C
Also in HARUNA V. AG FEDERATION (2012) LPELR-782 (SC) the apex Court held thusly:
“… It is indisputable that the prosecution must prove all ingredients of the offence against the appellant beyond reasonable doubt. Ubani v. State (2003) 18 NWLR pt.851 pg.24, Uguru v. State (2002) 9 NWLR pt.771 pg. 90. Igabele v. State (2006) 6 NWLR pt.975 pg.100, Adara v. State (2006) 9 NWLR pt.984 pg.155.” Per ADEKEYE, J.S.C.

The offences named in the charge are armed robbery and conspiracy contrary to Sections 6(b) and 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.

The Respondent called four witnesses in proof of its case while the Appellant testified in defence. The first issue touches on whether the offence of armed robbery was committed and proved.

b. That the robbers were armed with offensive weapons as at the time of the robbery; and

c. That the accused person participated in the robbery.

The fact of a robbery was not contested in the face of overwhelming evidence that a robbery occurred and victims testified to that effect. The ingredients that are contested are the second and third ingredients of the offence. In proving that the robbers were armed, the Respondent relied on the evidence of PW1 who gave a vivid account of how the robbery took place and said a hammer was used to break down his door, they used a cutlass and axe to beat him and he sustained injuries on his hand. He also told the Court that the Appellant threatened him with a gun. That the Appellant tied him up and inflicted him with machete cut injuries on his hand. The Court accepted and believed this piece of evidence which the lower Court found was corroborated by Exhibit D5. The said PW1 was then robbed after all the threats and injuries. Furthermore, Exhibits F, G, H, and J though contested are dangerous weapons allegedly recovered at the scene of crime days after the occurrence of the incidence. The apex Court described offensive weapon in the case of NWACHUKWU V. STATE (1986) LPELR-2085 (SC) and STATE V. FADEZI (2018) LPELR-44731 (SC) wherein the apex Court held thusly:
“Offensive weapon means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger or any piece of wood, metal glass or stone capable of being used as an offensive weapon. See Section 15 of Robbery and Firearms (Special Provisions) Act.” Per SANUSI, J.S.C.

The items clearly named by PW1 all fall within the category of what an offensive weapon is. The trial Court believed the evidence of the said witness. Now, assuming the offensive weapons identified by the prosecution witnesses were not recovered and tendered, would the count fail because of that? The apex Court in SIMON V. STATE (2017) LPELR-41988 (SC) 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.

Therefore, the arguments put forward concerning Exhibits F, G, H and J contending that they were recovered days after the incident is misconceived and untenable. In this case, PW1 a victim gave a clear description of the offensive weapons the robbers who came to attack used in the robbery incident. His evidence was not challenged nor contradicted on that point. It is also settled that the Court can convict on the evidence of a single witness who is believed by the Court. See OGU V. COP (2017) LPELR-43832 (SC) wherein the apex Court held thus:
“His Lordship noted that the law is settled that a Court can convict on the evidence of a single credible witness. What these observations reveal is that the Court found the evidence of PW3, who was not only an eye witness to the crime but also a victim, to be credible. The learned trial Judge correctly stated the position of the law. The evidence of a single witness, if found to be cogent and credible is sufficient, without more, to secure the conviction of a person accused of committing a crime, except where the evidence is such that requires corroboration by law. See Oguonzee Vs The State (1998) 5 NWLR (Pt.551) 521, Effiong Vs The State (1998) 8 NWLR (Pt.562) 362, Babarinde Vs The State (2014) 3 NWLR (Pt.1395) 568, Akpabio Vs The State (1994) 7 NWLR (Pt.359) 635.” Per KEKERE-EKUN, J.S.C.
The unchallenged evidence therefore stands and I also find that there was armed robbery.

The next element is whether the Appellant was amongst those who came to rob that day. PW1 was the one who clearly identified the Appellant and his co-accused, the trial Court believed the evidence and relied on it as supported by the confessional statements of the Appellant which were admitted without any objection as Exhibits K1 and K2 and therein the Appellant admitted being part of the robbery gang that operated that day. The trial Court relied upon it to find that the Appellant was part of the gang that operated that day. The Appellant’s Counsel raised a number of issues with the identity of the Appellant. One point that must be made at the onset is that the Appellant was arrested at the scene of crime. He explained it by saying that he was engaged to convey rods for one Saheed Ishola and that cannot raise a defence of alibi.

Firstly, the Appellant contended that an identification parade should have been conducted before arriving at the conclusion that the Appellant was amongst those who operated that day. Identification is simply a set of facts and circumstances for which a witness associate an accused person with the commission of the crime.

The argument of the Appellant is that PW1 did not see the Appellant at close range and therefore there was a doubt as to the identification of the Appellant. However, the evidence of PW1 is clear and direct as to the role played by the Appellant. The Appellant came close enough to threaten PW1 with a gun, the same Appellant tied up PW1 and used a cutlass to hit PW1 and inflicted machete wounds on PW1. Time taken to conduct all these actions cannot be a fleeting moment that can said that PW1 couldn’t have identified the Appellant. The evidence of PW1 on the identity of the Appellant was not challenged and the trial Court believed the said witness. Therefore, there was no doubt as to the identity of the Appellant and if any, it was created by the Appellant himself and being a self-created doubt, which has nothing to do with the Court, it cannot be a real doubt that the law would require the Court to resolve in favour of the Appellant. The witness, PW1 came very close to the Appellant to identify him and there is no doubt as to the identity of the Appellant so as to warrant conducting an identification parade as contended by the Appellant’s Counsel.

The next point in issue raised by the Appellant as issue three is the efficacy of the confessional statements. The confessional statements were relied upon by the trial Judge to find the Appellant guilty of the offence of robbery. In reassessing whether the Court was right in convicting the Appellant, this piece of evidence must also be considered.

The confessional statements admitted as Exhibits K1 and K2 were retracted by the Appellant when he said he did not make the statements.

The confessional statements were admitted without objection. A retraction means to say that something you have said is not correct or the act of recanting or withdrawal. Where an accused retracts his confessional statement, the question as to whether he has made it, is a matter to be decided at the conclusion of the case by the trial Court. The mere denial will not be a reason for rejecting it.
The position of the law is that retraction does not affect admissibility, it only goes to weight and probative value to be attached to it by the Court at evaluation stage of the trial. See ALAO V. STATE (2019) LPELR-47856 (SC) wherein the apex Court held thusly:
“… The retraction of a Confessional statement does not render confession inadmissible. The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Osetola v State (2012) 17 NWLR (pt 1329) 251 at page 278, Dawa v State (1980) 8-11 SC 236.” Per OKORO, J.S.C
The Court can convict on a retracted confessional statement if satisfied that the accused person made the statement. But it is desirable that before a conviction can be properly based on such a retracted confession there should be corroborative evidence. See SUNDAY V. STATE (2017) LPELR 42259 (SC) and IGBA V. STATE (2018) 6 NWLR (PT. 1614) 44.

The Appellant’s brief seem to argue against the two Exhibits from two angles, one is that he just did not make the statements and the second one is that it was made in disregard of the provisions of the Administration of Criminal Justice Law of Ogun State. I find the two approaches mutually exclusive. You cannot say, you did not make the statements and also say that the statements you made were contrary to the provisions of the Administration of Criminal Justice Law of Ogun State. You ordinarily have no business with the statement you allegedly did not make. The Court shall look at the two angles in the interest of justice.

The trial Judge considered the retracted statements and found that they are corroborated by the evidence of PW1 in all material particulars. He found that the Appellant admitted being at the scene of crime at about 1am and he was arrested at the scene, in addition, the truck the Appellant drove to the scene was also found there with the stolen rods and wires. The requirement that the trial Court should look for corroborative evidence before relying on a retracted statement was satisfied and the findings of the trial Judge based on the retracted statements cannot be faulted.

Now to the application of the Administration of Criminal Justice Law and the contention that the making of the said Exhibits K1 and K2 did not comply with the provisions of law. The Appellant argued that Section 19(3) of the Law requires that a confessional statement must be made in the presence of a Legal Practitioner of the Appellant’s choice before it can be admitted in evidence, the Section says:
“Where any person who is arrested with or without a warrant volunteers to make a Confessional Statement, the Police Officer shall ensure that the making and taking of such statement is recorded on a video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.”

The Administration of Criminal Justice Law, 2017 of Ogun State is a Procedural Law and Evidence as a subject is a Federal item under the Exclusive legislative list, which means that only the National Assembly has the competence to legislate on the subject, Ogun State House of Assemble lacks the legislative competence to legislate on the subject of evidence.
Furthermore, the procedure and protocol of how to handle confessional statements is provided for in the Evidence Act and if the provision of the Evidence Act is satisfied, the confessional statement must be admitted and it cannot be subject to the Administration of Criminal Justice Law of a State. A State law cannot override the provisions of a substantive Federal Act. See ELABANJO & ANOR V. DAWODU (2006) LPELR-1106 (SC) wherein the apex Court held thus:
“…Rules of Court cannot override statutory provisions of the law. See Alhaji Edun v. Odan Community, Ado Family etc (1980) 11 SC 103 at 124.” Per ONU, J.S.C.

The two Exhibits were properly before the Court notwithstanding the provisions of Section 19(3) of the Administration of Criminal Justice Law of Ogun State, 2017. The judgment of NNAJIOFOR V STATE (2019) 2 NWLR (Pt. 1655) 157 is not applicable in this instance.

Having considered the oral testimonies of the Respondent, the retracted confessional statements of the Appellant which were tested and corroborated, the trial Judge was right to find that armed robbery was committed by the Appellant. Issue one and three are resolved against the Appellant.

The Appellant under issue two contended that the evidence of Respondent’s witnesses were contradictory and therefore should not have attracted any value by the trial Court. Contradiction is simply lack of agreement or harmony between facts related by two persons, however, it was defined by NWEZE, JSC in the case of UCHE V. STATE (2015) LPELR-24693 (SC) thus:
“The word “contradiction”, traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite” see, Ikemson v. State [1989] 3 NWLR (Pt. 110) 455, 479.”

It is settled that any major conflict, contradiction or major mix up in the evidence in the case for the Respondent witnesses to have effect in the case, it must be substantial and fundamental as to affect the issue in contention before the Court.
It is important to note that slight discrepancies and variation in the evidence of witnesses is not fatal. Indeed, two human beings cannot give an account of an incident in the same way, we observe things and recall them differently, therefore, variations are allowed as long as they do not affect fundamental details touching on the issue in question. The Appellant in this case listed different aspects, one of which is that PW1 told the Court that offensive weapons used were picked from the scene of crime and taken to the Police Station while PW3 said no weapons were brought to the Station. The case of the Respondent was not made on which weapons were brought to the Police Station, the case was that offensive weapons were used during the armed robbery and PW1 listed what he saw during the attack. The law is settled that failure to tender offensive weapon used during a robbery attack cannot be fatal if the ingredients of the offence are established. See SALEH V. STATE (2018) LPELR-46337 (SC) on the same point, the apex Court held:
“This Court has in a number of decided cases, held that the failure by the prosecutor to produce and tender in evidence the weapon used in the commission of an offence is not fatal, provided there is circumstantial evidence strong enough to point to the accused as the perpetrator of the crime. See Olayinka v State (2007) 9 NWLR (Pt.1040) 561, Victor v State 12013) 12 NWLR (Pt.1369) 465, State v Umaru (2014) LPELR 224 (SC). In the instant case, the appellant admitted that he used a stick to hit the deceased. PW1 and PW2 confirmed that it was a stick that was used in hitting the deceased on the head. With these pieces of evidence, I am of the firm view that the failure to produce the stick by the prosecution is not fatal to its case.” Per GALUMJE, J.S.C.

In any case, at page 2 of the Reply brief, learned Counsel for the Appellant urged the Court to resolve whether Exhibits F, G, H and J were recovered from the scene of crime. This therefore means that some of the weapons recovered at the scene were tendered. The fact that PW1 did not name the Policeman who recovered the items cannot be fatal. The weapons could have been recovered by any policeman, any other person or even the victims of crime.

The trial Court found support in the confessional statements of the Appellant where he named offensive weapons which supported what PW1 told the Court. The fact that evidence of PW1 on the weapons he named was not discredited, the trial Court cannot be faulted in the findings. The fact that PW3 said weapons were recovered and PW4 saying none was brought to the Station is not fatal. PW4 was at the CID office while PW3 was at Mowe Police Station.

The two therefore were not referring to the same Police Station and that cannot be a contradiction even though the same weapons were involved, however, different Police Stations in this case is a major factor in holding that there is discrepancy or contradiction.

Furthermore, PW3 told the Court that he did not recover ammunition from the scene of crime not that the offensive weapons were not recovered from the scene. Therefore, there is no contradiction in the evidence of PW3 and PW4 and the question whether dangerous weapons were recovered is not relevant here.

The evidence of PW1 was believed by the lower Court and it cannot be said to be unreliable. The items tendered as Exhibits F, G, H were recovered from the scene of crime by the Policemen who rescued PW1 and they were the items named by PW1. PW3 was not one of those who rescued PW1 rather the Policemen who were on duty nearby and who took PW2 along the Appellant to the Station. In the same vein, PW4 was not at the scene of crime.

There is no contradiction and even if there were, such contradiction must be fundamental as to affect the case. See EFFIA V. STATE (1999) LPELR-1025 (SC) wherein the apex Court held thus:
“It is pertinent to state that it is settled law that for any conflict or contradiction in the evidence of prosecution witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the Court. See Onubogu & Anor. V. The State (1974) 1 All NLR (Pt. 11) 5; Nasamu v. The State (1968) NMLR 86; Enahoro v. Queen (1965) 1 All NLR 125; Ibe v. State (1992) 5 NWLR (Pt. 244) 642 at 649; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129.” Per EJIWUNMI J.S.C.

The next point to consider is the participation of one Saheed Ishola, the Appellant argued that the said Saheed Ishola engaged him to convey the stolen wires, the burden of proving that rests squarely on the Appellant and not the prosecution. The fact was established during investigation that Ishola did not participate in the robbery and the fact of engagement is within the particular knowledge of the Appellant and cannot be established by the Respondent. The failure to call Saheed Ishola by the prosecution did not mean that the Appellant could not have called him. The Appellant did not request the Respondent to summon Saheed Ishola for his defence. Without a request, the Respondent could not have assumed the line of defence the Appellant wanted to adopt. After all there was a relationship between the Appellant and the said Saheed Ishola outside the Respondent, how then can the Appellant contend that the Respondent should have called Saheed Ishola for him without a request, even the case of IBRAHIM V. STATE (Supra) said the Respondent should make available witnesses as requested by the Appellant. There was no request here.

The prosecution is not bound to call a host of witnesses as long as the witnesses listed can prove the charge by evidence tendered in Court. See AJIBOYE V. FRN (2018) LPELR-44468 (SC) wherein the apex Court held thusly:
“In any case, it is even not the law that the prosecution must call a host of witnesses to establish its case. All it is required to do is to call witnesses who are material and would assist it in proving its case.” Per SANUSI, J.S.C.

The Appellant is misconceived to think that his intention of being at the scene of crime is a defence, he was arrested at the scene of crime and was identified clearly by PW1 as the person who inflicted injuries on him, tied him up and threatened him with a gun. The fundamental question to ask is whether it is reasonable to contend that the Appellant was at the scene at such an unholy hour (1am) merely to transport the wires on the request of Saheed Ishola. Why was he carrying the goods at 1am? If the Appellant was arrested in the day time, the excuse of the Appellant may deserve some consideration but it sounds ridiculous to think that a reasonable person would believe such excuse, carrying out instruction at night in a place that is not owned by the person who allegedly contracted the Appellant and who refused to appear to testify on behalf of the Appellant. At the end, the excuse that the Appellant was engaged was not established by the Appellant.

Agreed that mens rea is an essential ingredient in establishing the guilt of the Appellant. Mens rea is simply a guilty mind and the drafts person of the criminal code outlined the mental elements or the requisite intent and that is what is known as mens rea of the offence alleged. The Appellant alleges that the mental element was not established. To establish a guilty intent can be conveniently proved from circumstantial evidence. The Appellant was clearly identified by the PW1, he was arrested at the scene of crime at 1am in the dark and he himself admitted being at the scene with offensive weapons. What other intent or guilty mind needs to be proved outside the evidence before the Court.

The Appellant did not discharge the evidential burden, he is expected to cast reasonable doubt on the prosecution’s evidence tending to establish his guilty criminal mind or the mens rea. So much fuss was made of the dictum in the case of ANI V. STATE (2009) 16 NWLR (Pt. 1168) 443 where the apex Court held that beyond reasonable doubt means fully satisfied, entirely convinced that the proven facts established the guilt of the accused. Yes, the burden of proving the guilt of the accused person rested throughout on the prosecution but there is evidential burden too which was not discharged in this case. The law does not say that the Defendant does not bear the burden of refuting or rebutting the prosecution’s case. Rather, it affirms that the defence has burden of rebuttal. It says that that evidential burden befalls the defence only after the prosecution had led evidence proving prima facie the guilt of the defendant accused of committing an offence. Section 131 (2) and 136 (1) of the Evidence Act, 2011 lay the burden of proving a particular fact on the person who wishes the Court to believe in its existence. Conterminously, the defence in criminal proceedings has the evidential burden of casting reasonable doubt on the inculpatory prosecution’s case. See ESSEYIN V. STATE (2018) LPELR-44476 (SC), PER EKO, J.S.C.
The Appellant had the burden to establish that he was at the crime scene for a different purpose, he did not raise an alibi and none could stand when he was arrested at the scene of crime and with eye witness account that identified him without any challenge.

Another angle to the question of contradiction, the Appellant took the angle of inconsistency of Exhibit C and Exhibit K1 and K2, these are the statements of the Appellant. The current trend is that inconsistency rule does not apply to the person accused of crime. See SIMON V. STATE (2017) LPELR – 41988 (SC) and UZOMA V. STATE (2018) LPELR-44765 (CA) wherein the Court held thusly:
” … “In R v Golder (1960) 1 WLR P.1169 Lord Parker CJ of England explained the inconsistency Rule when His lordship said that: “When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act.” This position of the law has long since been adopted and applied in Nigeria. See Joshua v. Queen (1964) 1 ANLR P. 1 State v Okoro (1974) 2 SC P.73 Queen v Ukpong (1961) ALL NLR p. 25. The issue is not the inconsistency rule as it applies to a witness rather it is the inconsistency rule as it applies to an accused person. The law is long settled that the inconsistency Rule does not apply to an accused person. Cases where an accused person confessional extra-judicial statements run contrary to his testimony in Court are not covered by the inconsistency rule…” Per LOKULO-SODIPE , J.C.A
The developmental history of the rule was given in the lengthy quotation from the case of SMART V. STATE (2016) LPELR-40728 (SC) thusly:
“I had occasion to deal with this question in my yet unreported leading judgment in Appeal No. SC.635/2013: Segun Akinlolu v. State (delivered on December 11, 2015) pages 11-20. There, I explained that the inconsistency rule traces its jurisprudential pedigree to England. Its most eloquent formulation can be found in R v Golder (1960) 1 WLR 1169 where Lord Parker CJ held: “when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous Statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” Well before the decision in R v Golder (supra), the rule had been applied to witnesses only, Birch v R (1926) 1 CAR 26; also, R v Harris (1927) 20 CAR 144. The first case to invoke that rule in Nigeria was Queen v. Ukpong (1961) ALL NLR 25, 26 which approved the statement of law in R v Golder (supra). At its said evolution in Nigeria, therefore, the posture of the Courts was that the rule was “Properly” applicable to the evidence of an ordinary prosecution witness. Subsequent decisions confirmed this posture, Joshua v The Queen (1964) 1 ALLNLR 1, 3 – 4, Agwu v. The State (1965) NMLR 18, 20, The State v Okoro (1974) 2 SC 73, 80 – 81, Onubogu v. The State (1974) 9 SC 1, Williams v The State (1975) 9 – 11 SC 139, Boy Muka v The State (1976) 9 – 10 SC 305. Indeed, in Udo v The Queen (1964) ALL NLR 21, 24, Brett JSC resisted an attempt to extend the application of the rule to the previous confession of an accused person and his evidence. As noted above, on its adoption in Nigeria, the rule was applicable to the evidence of an ordinary witness. Since its adoption, it has not been an inflexible rule of law or practice. In order to ensure that its operation did not eventuate to injustice, the Courts had developed a safeguard. Thus, in addition to considering the totality of the evidence, the witness was given an opportunity, while in the witness box, to explain the inconsistency. Bello CJN in Egboghonome v The State (1993) 9 SCNJ 1, 21 – 22, approvingly, quoted the observation of Idigbe JSC in Jizurumba v. The State (1916) NSCC (Vol. 10) 156 on the rationale for the introduction of this safeguard. “A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in Court, or the inconsistency may, indeed, be minor or unsubstantial … in which case the inconsistency may fail to discredit his entire testimony.” Thus, it was only where the witness was unable to explain the inconsistency satisfactorily that the rule was applied. The rule was limited to the statement of a witness and his inconsistent testimony. However, in 1985, the decision in Owie v The State (1985) 1 NWLR (Pt.3) 470, for the first time, extended the rule to the statement and evidence of the accused person. Subsequent decisions such as Omogodo v The State (1987) 5 – 7 SC 5; Stephen v The State (1986) 5 NWLR (Pt.46) 98; Oladejo v. The State (1987) 3 NWLR (Pt.61) 419, Umani v The State (1988) 19 NSCC (Pt.1) 137; Mbenu v The State (1988) 3 NWLR (Pt.84) 615 perpetuated this trend. Interestingly, in 1989, this Court went back to the earlier position in Udo v The Queen, (supra) and held that the principle did not apply to an accused person and his confessional statement, Ikemson v The State (1989) 3 NWLR (Pt. 110) 455, 473. Such was the uncertainty that characterized application of the rule in Nigeria, hence, the law on effect of the inconsistency between the sworn testimony and previous statements made by an accused person, was enveloped in unwarranted recondity, see, C. C. Nweze, Contentious Issues and Responses in Contemporary Evidence Law in Nigeria [Volume One (Enugu: IDS, University of Nigeria, 2003) 286. In 1991, in Asanya v The State (1991) 3 NWLR (Pt.180) 422, this Court had another opportunity to examine the rule. The question there was whether the rule was applicable when the witness was an accused person himself. In that case, the apex Court declined the invitation to overrule the line of cases in Omogodo v The State (supra); Stephen v The State (supra); Oladejo v. The State (supra); Umani v The State (supra); Mbenu v. The State (supra) which had extended the rule to the accused person himself. This state of affairs continued until 1993 when, in Egboghonome v The State (supra), this Court streamlined the application of the rule. Delivering the leading judgment of the Court, Bello CJN (Karibi-Whyte JSC dissenting) described the decisions in the Saka Oladejo and Asanya cases (supra) as “a departure from the long established principle laid down in Udo v The State (supra) and the several decisions of this Court thereafter that [the] inconsistency [rule] does not apply to retracted extra-Judicial confession of an accused. According to His Lordship, the application of the rule in R v Golder to retracted confessions would tantamount to overruling, by implication, all the relevant decisions of this Court from 1964 to 1992. His Lordship was not unmindful of the sociological implication of the extension of the rule for he held [at page 31] that: “…grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustice to the society as murderers would be at large simply because after a second thought, they have retracted their confessions.” He therefore, overruled the decisions in Oladejo (supra) and Asanya (supra) and so on. Consistent with the doctrine of stare decisis, post Egboghonome decisions have reverted to the position in Udo v The Queen (supra), namely, that the inconsistency rule does not apply to the previous confessions of an accused person and his evidence in Court.

The cases on this point are many. Only a handful will be cited here: Akpan v The State (2001) 15 NWLR (Pt.737) 745, Nsofor v The State (2004) 18 NWLR (Pt.905) 292, Dibie and Ors v State (2007) All FWLR (Pt.363) 83, Amoshima v State (2009) 32 WRN 47, Saidu v. State (2009) 29 WRN 86, Aiguoreghian v State (2004) 1 KLR (Pt.170) 129, 152, Adeoti v. State (2009) All FWLR (Pt.454) 1450, 1509-1511 etc.” Per NWEZE, J.S.C.
The lengthen quotation above settles the fact that inconsistency rule does not apply to a person accused of committing a crime.

The Appellant still questioned the verdict arrived at by the trial Court, contending that the Respondent did not discharge the burden of proof. It was observed earlier that the burden on the Respondent is to prove all elements of the offence of armed robbery and conspiracy and I have in this judgment found that the elements were proved beyond reasonable doubt. The evidence of the eye witness was not challenged and was believed by the trial Judge. This issue is basically a re-argument of earlier issues resolved in this appeal. We also looked at the evidential burden on the Appellant which was not discharged thus leaving the case of the Respondent standing unchallenged. It will serve no useful purpose repeating myself here. Proof beyond reasonable doubt is not proof beyond all shadow of doubt. See UKPONG V. STATE (2019) LPELR-46427 (SC) wherein the apex Court held thusly:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed conterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,”Dibie v State (2007) LPELR -941 (SC), Dimlong v Dimlong [1998] 2 NWLR (pt. 538) 381, 178; State v Gwangwan (2015) LPELR -24837 (SC). I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt. 868) 166, 179. Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305…” Per NWEZE, J.S.C.

The conspiracy angle is simply an agreement to do an illegal act or a legal act by illegal means. See AWOSIKA V. STATE (2018) LPELR-44351 (SC) and YAKUBU V. STATE (2014) LPELR-22401 (SC) wherein the apex Court held thus:
“It is well settled that conspiracy is seldom proved by direct evidence. In Obiakor Vs. The State (2002) 6 SC (Part II) 33 @ 39 – 40 this Court held, per Kalgo, JSC held: “Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.” Per KEKERE-EKUN, J.S.C
It is trite that conspiracy is largely proved by inference and not by direct evidence. See YAKUBU V. STATE (Supra).

The evidence of PW1 which was not challenged clearly identified the Appellant and the second accused as part of the robbery gang and that they robbed him of the sum of N15,000.00. The Appellant admitted being part of the gang. The Respondent does not need to prove that there was a meeting with minutes of meeting. Conspirators don’t even have to have met or know themselves before conspiracy can be established. The physical presence and active participation of the Appellant and the second accused in the robbery is enough evidence to establish conspiracy. They were in confederacy and acted in concert. I also agree with the findings of the trial Judge that conspiracy was proved. I so hold.

The Appellant under issue five asked whether the trial Judge was right to convict the Appellant. Where the trial Court finds all ingredients of the offence as established by cogent evidence, the only duty to perform is to make a finding, the process was explained in the case of EMMANUEL V. FRN (2019) LPELR-47925 (CA) by JAURO, JCA (as he then, now JSC) as follows: “In a criminal trial upon conclusion of evidence and addresses, if the trial Court finds the accused not guilty it will automatically acquit him in its judgment. On the contrary where the trial Court finds him guilty of the offence charged or any other offence, he will be convicted and the trial Court will pronounce its sentence on the accused person.”

All the Appellant’s arguments under issue five are a repetition of the other issues resolved earlier in this appeal. It is waste of judicial time to repeat findings on the same points made earlier. The guilt of the Appellant has been established and the trial Court cannot be faulted in finding the Appellant guilty of the offences of armed robbery and conspiracy. For the sake of emphasis, the Appellant was arrested at the scene of crime, he confessed to the crime, he was identified by the victim of the offence and he failed to shift back the evidential burden back unto the Respondent. All these and other findings made by the trial Judge are unassailable and must stand.

Consequently, I resolve all issues against the Appellant. The appeal lacks merit and is hereby dismissed. The judgment of the Ogun State High Court in Suit No.: AB/21R/2017 delivered By HON. JUSTICE P. F. ODUNIYI on the 20th May, 2020 is hereby affirmed.

FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I completely agree with the reasons advanced and the conclusion reached that the appeal is devoid of merit.

It is settled law that it is the primary function of the trial Court or Tribunal to evaluate evidence placed before it, before arriving at a conclusion/decision. It is only where and when the Judge/Court fails to evaluate the evidence or properly evaluate the evidence that an appellate can intervene and in itself evaluate or re-evaluate such evidence.

For a proper evaluation of the evidence adduced before it in a case, the trial Court must be sure or must ascertain that:
(a) the evidence is admissible in law;
(b) that such evidence being evaluated are relevant;
(c) that the evidence or witness is credible and lastly;
(d) the conclusiveness and probability of the evidence.
See MOHAMMED VS. STATE (2021) 6 NWLR (1771)123, BROWN VS. STATE (2017) 4 NWLR (PT. 1556)341, ABIODUN VS. STATE (2013) 9 NWLR (PT. 1358)138.

In this appeal, there is no dispute that the Appellant was arrested at the scene of crime (locus criminis) in possession of offensive weapons at about 1.00am. The Truck driven by him was found laden with rods and wires stolen from the scene of crime. PW1 identified him as the person who inflicted injuries on him, tied him up and threatened him with a gun.

The learned trial Judge evaluated the foregoing evidence amongst others and found it credible. The Appellant failed to demonstrate how the learned trial Judge failed to do a proper evaluation of the evidence placed before him. I do not find any reason to interfere with the evaluation of evidence done by the trial Judge and his conclusion.

It is for the foregoing and the fuller reasons given in the lead judgment that I also dismiss the appeal and affirm the judgment of the lower Court.

ABBA BELLO MOHAMMED, J.C.A.: My noble Lord, YARGATA BYENCHIT NIMPAR, had availed me with a draft of the lead judgment just delivered. I fully agree with His Lordship’s reasoning and conclusion that this appeal is unmeritorious.

The law is trite that in a criminal trial, the burden is always on the prosecution to establish with credible evidence and beyond reasonable doubt the guilt of the Defendant for the offence(s) with which he is charged. See Section 135(1) and (2) of the Evidence Act, 2011 and FRN v UMEH & ANOR (2019) LPELR-46801(SC), per Muhammad, JSC at pages 7 – 8, paras. E – B and EZEANI v FRN (2019) LPELR-46800(SC), per Okoro, JSC at pages 20 – 21, para. A. This burden of proof, the prosecution can discharge through any, combination of, or all of the three ways of establishing the guilt of a Defendant, namely – (i) by reliance on a voluntary confessional statement of the Defendant; (ii) by direct evidence of eye witnesses to the crime; or (iii) through circumstantial evidence. See SAMINU v STATE (2019) LPELR-47622(SC), per Ariwoola, JSC at page 14, paras. A- E and BASSEY v STATE (2019) LPELR-46910(SC), per Sanusi, JSC at pages 9 – 10, para. C.

Before the trial Court, the Respondent had in proving the guilt of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery, relied upon the eye witness evidence of PW1, who not only gave a detailed account of the robbery but also identified the Appellant as one of the robbers and graphically stated the role the Appellant played in threatening him with a gun, tying him up and inflicting injuries on him with a machete. Added to the eye witness evidence of PW1, the Respondent also tendered as Exhibits F, G and H the weapons used in the commission of the robbery incident. Worse still for the Appellant, he was not only arrested at the scene of the crime, thus obviating the need for any identification parade, the Respondent also tendered Exhibits K and K1, the confessional statements of the Appellant. In short, the printed record of appeal shows that the Respondent has by a combination of direct eye witness evidence, material evidence and the confessional statements of the Appellant, established beyond reasonable doubt that the Appellant committed the offences with which he was charged. See SAMINU v STATE (supra) and BASSEY v STATE (supra).

Given this position, the Appellant’s argument on the need for identification parade is misconceived as identification parade is not necessary in this case where he was arrested at the scene of crime and where he has confessed to committing the crime: NJOKU v STATE (2021) LPELR-53076(SC), per Nweze, JSC at pages 17 – 19, paras. A.

Again, the Appellant’s argument over retraction of the confessional statements attributed to him runs counter to his other argument over the failure to comply with the procedure stipulated in the Administration of Criminal Justice Law of Ogun State. He cannot claim that he did not make the statement over which he claims that the proper procedure for recording same was not complied with. In any event, retraction of confessional statement does not make same inadmissible, and same can be relied upon by a trial Court, especially in this case where direct evidence of PW1, the eye witness to the robbery incident, as well as the material evidence of the weapons used, had corroborated those statements. See TOBI v STATE (2019) LPELR-46537(SC), per Sanusi, JSC at pages 17 – 20, paras. F – A, SHODIYA v STATE (2013) LPELR-20717(SC), per Muhammad. JSC at pages 26 – 27, paras. B – C; and LASISI v STATE (2013) LPELR-20183(SC), per Ariwoola, JSC at pages 51 – 52, paras. F – C. The trial Court was therefore entitled to rely on those confessional statements in convicting the Appellant even if retracted, since the trial Court was satisfied as to its truth. See OKOH v STATE (2008) LPELR-8358(CA), per Lokulo-Sodipe, JCA at pages 29 – 30, para. E and UMAR v STATE (2015) LPELR-25960(CA), per Wambai, JCA at pages 17 – 18. para. B.

As for the argument of the Appellant over discrepancies in the evidence of the Respondent’s witnesses, it is only material contradictions in respect of a fact in issue that creates such doubt as would affect the finding or decision of the trial Court. See MUSA v STATE (2019) LPELR-46350(SC), per Muhammade,JSC at page 9, para. A; and GALADIMA v STATE (2017) LPELR-43469(SC), per Galinje, JSC at page 49, para. C. There are no material discrepancies in this case as could affect the credible evidence on record.

It is for the above reasons which have been more elaborately espoused in the lead judgment of my learned brother, YARGATA BYENCHIT NIMPAR, JCA, that I also find this appeal bereft of any merit. Accordingly, I join in dismissing same and in affirming the judgment of the trial Court delivered on 20th May, 2020.

Appearances:

Olatunde Oladele For Appellant(s)

Babajimi Ayorinde, with him, O. Sarumi For Respondent(s)