OLUWAROTIMI v. STATE (2020)

OLUWAROTIMI v. STATE

(2020)LCN/15339(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, July 10, 2020

CA/IB/520C/2018

RATIO

EVIDENCE: RELEVANT OF THE EVIDENCE OF AN EYE-WITNESS

CONFESSIONAL STATEMENT: WHETHER A COURT MUST CONDUCT A TRIAL WITHIN TRIAL WHERE AN ACCUSED PERSON ADMITS MAKING THE STATEMENT BUT CONTENDS THAT HE DID NOT MAKE IT VOLUNTARILY BUT UNDER DURESS

Where an accused person admits making the statement but contends that he did not make it voluntarily but under duress or torture then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. Nevertheless when the trial Court is satisfied that the statement was made voluntarily, the Court is entitled to admit it as Exhibit in evidence before the Court. But where the Appellant denied making the statement, not that he was forced to make it under duress then trial within trial should not be conducted. See – AKPA VS STATE (2008) 14 NWLR PART 1106 PAGE 72. PER JIMI OLUKAYODE BADA, J.C.A

CONFESSIONAL STATEMENT: RELEVANCE OF A CONFESSIONAL STATEMENT

It is also trite law that a confessional Statement once admitted becomes part of the case for the Prosecution which the lower Court was duty bound to consider in determining the probative value of the totality of the evidence adduced by the Prosecution.
Furthermore, there cannot be a more appropriate person to give evidence of guilt of the accused more than the accused himself. Therefore if an accused says that he committed the offence and the Court comes to a conclusion that he made the statement in a stable mind and not under duress, then the accused must be convicted. A Confessional Statement is the best evidence in a criminal trial.
See – SMART VS STATE (2016) 1-2 S.C. PART II PAGE 41.
– AKPA VS STATE (SUPRA). PER JIMI OLUKAYODE BADA, J.C.A

CRIMINAL TRIAL: RELEVANCE OF THE DEFENCE OF ALIBI

It is trite law that the defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere, other than the scene of the crime and could not have been involved in the commission of the crime with which he is charged. See – SHEHU VS THE STATE (2010) ALL FWLR PART 523 PAGE 1841.
– EGWUMI VS STATE (2013) 13 NWLR PART 1372 PAGE 525.
In OCHEMAJE VS THE STATE (2008) 10 SCM PAGE 103 AT 107, it was held among others thus:
“…the Police in order to investigate a plea Alibi, special particulars of the where about of the accused (Appellant) at the maternal time …. It is not the law that the Police should be involved in a wild goose chase for the whereabout of an Appellant (accused) at the time the crime was committed…. The accused must give specific particulars of his whereabout at the material time to enable the Police move straight to the place to carry out the investigation required by law.”
In the circumstance, I am of the view that the Appellant’s Alibi made during trial is an after-thought which the Court cannot rely upon. The evidence of PW1, PW2 and Exhibit “C” fixed the Appellant to the scene of crime, the defence of Alibi is therefore destroyed. PER JIMI OLUKAYODE BADA, J.C.A

CRIMINAL LAW: CONSPIRACY: FACTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF CONSPIRACY

Conspiracy has been defined in a number of decided cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by unlawful means.
The two or more persons must be found to have combined in order to secure a conviction.
In BELLO VS. THE STATE (2010) 12 SCM PART 2 PAGE 28 AT 34, it was held among others that:-
“The offence of Conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreement can be inferred by what each person does or does not do in furtherance of Conspiracy.”
See the following cases:-
– OKEMEFUNE NDOZIE VS. THE STATE (2016) 8 NWLR PART 1513 PAGE 126.
– TAIWO OLADEJO VS. THE STATE (2018) 11 NWLR PART 1630 PAGE 238.
– BELLO OKASHETU VS. THE STATE (2016) 8 NWLR PART 1534 PAGE 1.
The main substance of the offence of Conspiracy is the meeting of minds of the Conspirators which is hardly capable of direct proof. The offence of Conspiracy is established as a matter of inference deduced from certain criminal act of the parties concerned.
See the following cases:-
– PATRICK NJOVENS VS. STATE (1973) 5 S.C. PAGE 17.
– KOLAWOLE VS. STATE (2015) 8 NWLR PART 1460 PAGE 134.
– MUSA VS. THE STATE (2018) 13 NWLR PART 1636 PAGE 307. PER JIMI OLUKAYODE BADA, J.C.A

CRIMINAL TRIAL: BURDEN OF PROOF: WAYS BY WHICH THE PROSECUTION CAN PROVE THE COMMISSION OF A CRIME.

It is trite law that the Prosecution in a Criminal trial is required to prove its case against the accused person beyond reasonable doubt.
See – Section 135(1) of the Evidence Act 2011 and the following cases:-

– JUA VS. THE STATE (SUPRA).
– ABIRIFON VS. STATE (2013) 13 NWLR PART 1372 PAGE 619.
– HASSAN VS. STATE (2017) 5 NWLR PART 1557 PAGE 1.
The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with.
See – SMART VS. STATE (2016) 9 NWLR PART 1517 PAGE 447.

In the discharge of the onus of proof, there are three ways by which the Prosecution can prove the commission of a crime.
(i) By Confessional Statement
(ii) By evidence of eye witness or witnesses.
(iii) By circumstantial evidence where Confessional Statement is lacking.
See the following cases:-
– EMEKA VS. STATE (2001) 6 SCNJ PAGE 259.
– ABIRIFON VS. STATE (SUPRA).
– GIRA VS. STATE (1996) 4 SCNJ PAGE 95 AT 106. PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW: INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF ARMED ROBBERY

The Appellant in this case was charged and convicted for the offences of Conspiracy to commit Armed Robbery and Armed Robbery.

The position of the law is that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following ingredients of the offence of Armed Robbery beyond reasonable doubt:
(1) That there was a Robbery or series of Robberies.
(2) That the said Robbery was an Armed Robbery.
(3) That the Appellant was one of those who took part in the Armed Robbery.
See the following cases:- OSUAGWU VS. STATE (Supra)
– ATTAH VS. STATE (2010) 10 NWLR PART 1205 PAGE 190. PER JIMI OLUKAYODE BADA, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ADENEYE OLUWAROTIMI APPELANT(S)

And

THE STATE RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court of Justice, Ijebu-Ode Judicial Division in Charge No – HCJ/19C/2016: BETWEEN – THE STATE VS. ADENEYE OLUWAROTIMI delivered on the 4th day of October, 2018 wherein the Appellant/Accused person was convicted for the offences of Conspiracy to commit Armed Robbery and Armed Robbery and was sentenced to death.

Briefly, the facts of the case according to the Prosecution was that on 16/12/2015, the Appellant and one other person boarded the motorcycle of PW1, a commercial motorcyclist from Degun to Imoru. On getting to a corner, the two passengers alighted. The Appellant who was one of the passengers brought out a gun and screw driver.

The PW1 i.e. the motorcyclist was hit with the butt of the gun and stabbed with the screw driver. The PW1 held on to the Appellant and the Appellant fought him and overpowered him. He then raised alarm and passerby came to his rescue.

The PW2 met the duo and arrested them. They were taken to the police station where the Appellant made a Confessional Statement.

Accused/Appellant was arraigned before the lower Court on a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6 (b) and 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R.II Laws of the Federation of Nigeria 2004.

According to the information, the Accused person/Appellant and another person at large on 16/12/2015 at a point along Imoru Road, Ijebu-Ode conspired to commit Armed Robbery and Armed Robbery while armed with gun and screw driver did rob one Aminu Gando of a Bajaj motorcycle with Registration number TRE 219 VH at gun point.

At the conclusion of the trial the learned trial Judge, in his Judgment delivered on 4th October, 2018 found the Appellant guilty and was convicted and sentenced to death.
The Appellant who is dissatisfied with the Judgment of the trial Court appealed to this Court.

The learned Counsel for the Appellant formulated six (6) issues for the determination of the appeal. The said issues are set out as follows:-
“(1) Whether failure to recover and tender
(a) The items allegedly used to commit the crime
(b) The things allegedly stolen and
(c) The medical report showing that the victim was truly injured, are not fatal to Prosecution’s case, when Appellant was allegedly arrested from the scene of crime. (Distilled from Grounds 1 & 3)
(2) Whether trial Court ought not to discharge the Appellant on his defence of Alibi. (Distilled from Ground 9)
(3) Whether the trial Court was not in error to rely on the conflicting evidence of PW1, PW2 and PW3 to convict and sentence the Appellant. (Distilled from Ground 4)
(4) Whether the trial Court was right to ascribe any weight or probative value on Exhibit “C”, the alleged extra–judicial Confessional Statement of the Appellant and rely on it to convict and sentence the Appellant. (Distilled from Ground 6)
(5) Whether the Prosecution proved the offence of Conspiracy to commit Armed Robbery against the Appellant beyond reasonable doubt. (Distilled from Grounds 2, 5, 7 and 8)
(6) Whether the Prosecution proved the offence of Armed Robbery against the Appellant beyond reasonable doubt. (Distilled from Grounds 4 & 8).”

On the other hand, the learned Counsel for the Respondent formulated two issues for the determination of the appeal.
The said issues are set out as follows:-
“(1) Whether the Prosecution has proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt, having considered the defence of Alibi raised by the Appellant.
(2) Whether the trial Court rightly admitted and relied on the Appellant’s Confessional Statements having regard to the circumstances of the case.”

At the hearing of this appeal on 28th day of May 2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 4/10/2018.

The Notice of Appeal was filed on 12/11/2018 while the Records of Appeal was transmitted on 19/12/2018. The Appellant’s Brief of Argument was filed on 24/1/2019. There is also the Appellant’s Reply Brief of Argument filed on 4/5/2020 but deemed as properly filed on 28/5/2020.

The learned Counsel for the Appellant adopted and relied on the said briefs as his argument in urging that the Appeal be allowed.

The learned Counsel for the Respondent also referred to the Respondent’s Brief of Argument filed on 23/3/2020 which was deemed on 28/5/2020 as properly filed.
He adopted and relied on the said Respondent’s Brief of Argument as his argument in urging that the appeal be dismissed.

I have perused the issues formulated for the determination of this appeal by Counsel for both parties. I am of the view that the issues formulated for determination on behalf of the Respondent encapsulates the issues formulated for determination on behalf of the Appellant.
I will therefore rely on the issues formulated for the determination of the appeal on behalf of the Respondent.

ISSUES FOR THE DETERMINATION OF THIS APPEAL
“(1) Whether the Prosecution has proved the offences of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt, having considered the defence of Alibi raised by the Appellant.
(2) Whether the trial Court rightly admitted and relied on the Appellant’s Confessional Statements having regard to the circumstances of the case.”

ISSUE NUMBERS 1 & 2 (TAKEN TOGETHER)
The learned Counsel for the Appellant submitted that for the Prosecution to prove its case, the standard of proof required is proof beyond reasonable doubt.
He relied on the following cases:-
– ALABI VS. THE STATE (1993) 7 NWLR PART 307 PAGE 511 AT 531.
– SOLOLA VS. THE STATE (2005) 5 S.C. PART 1 PAGE 135 AND
– SECTION 135 (1) OF THE EVIDENCE ACT 2011.

He contended that the offence was not proved beyond reasonable doubt as the Prosecution’s case in his view is fraught with fundamental irregularities, conflicts and contradictions.
He relied on the following cases:- AMADI VS. STATE (1993) 8 NWLR PART 314 PAGE 644.
– ALOR VS. STATE (1997) 1 NWLR PART 501 AT PAGE 511.

Learned Counsel for the Appellant contended that Robbery is stealing by using firearm or threatening violence.
He went further that the essential ingredients of Armed Robbery which must be proved conjunctively are that:-
(i) There was a Robbery incident or series of Armed Robbery
(ii) The Robbery or each of the Robberies was an Armed Robbery or carried out with offensive weapon and
(iii) The accused person was the Armed Robber or one of the Armed Robbers.

He relied on the following cases:- ONYENYE VS. STATE (2012) 15 NWLR PART 1324 PAGE 586.
– CHUKWUEMEKA AGUGUA VS. STATE (2017) 10 NWLR PART 1573 PAGE 254 AT 275.
– ALABI VS. STATE (1993) 7 NWLR PART 307 PAGE 511.
– BELLO VS. STATE (2007) 10 NWLR PART 1043 PAGE 564.
– ABIODUN ADEKOYA VS. STATE (2017) 7 NWLR PART 1565 PAGE 343 AT 355 (SC).

He referred to the evidence of PW1 who had been living in Ijebu-Ode since 2002 and claimed that the incident took place at Degun. He also stated that the incident happened at about 7:30p.m.and contended that it is doubtful whether the PW1 actually saw gun.

On the identity of the motorcycle, learned Counsel stated that the information before the Court was that the Bajaj motorcycle had Registration number TRE 219 VH but that PW1 testified that the number is TRE 218 VH.

The learned Counsel for the Appellant urged this Court to hold that failure to recover and tender –
(a) The items used to commit the crime
(b) Things allegedly stolen
(c) The medical report showing that the victim was truly injured are fatal to the Prosecution’s case.

It was also contended on behalf of the Appellant that in proving the offence of Conspiracy to commit Armed Robbery, the Prosecution must establish that the Appellant agreed with one or more persons to rob PW1 and that the said Robbery was carried out in furtherance with the said agreement and that the Appellant participated in the Robbery.
He relied on the following cases:- OBIAKOR VS. STATE (2002) 10 NWLR PART 776 PAGE 612.
– ABDULLAHI VS. STATE (2008) 17 NWLR PART 1115 PAGE 203 AT 221.
– SALAWU VS. STATE (2011) 18 NWLR PART 1279 PAGE 580.
– DARLINGTON EZE VS. F.R.N (2017) 15 NWLR PART 1589 PAGE 433 AT 489.
– OYEDIRAN VS. THE REPUBLIC (1967) NMLR PAGE 122 AT 127 – 128.
– STATE VS. ADEMOLA BELLO & OTHERS (1989) 1 CLRN PAGE 370 AT 377.
– YAKUBU VS. STATE (2014) LPELR – 22401 (SC).

The learned Counsel for the Appellant submitted that the Prosecution failed to establish that the Appellant agreed with anyone to rob PW1.

On the issue of Alibi which the learned Counsel for the Appellant defined as physical impossibility of the accused being elsewhere other than the scene of crime. He seeks to establish that the accused was not at the scene of crime and therefore not in a position to commit or participate in the crime. He relied on the following cases:-
– IDEMUDIA VS. STATE (2015) 17 NWLR PART 1488 PAGE 375.
– CHIEF VINCENT DURU (ALIAS OTOKOTO) VS. THE STATE (2017) 4 NWLR PART 1554 PAGE 1 AT 31.
– STANLEY ANIETIE UDO VS. THE STATE (2017) 3 NWLR PART 1553 PAGE 411 AT 417 (SC).

It was also submitted on behalf of the Appellant that contrary to the trial Court, the Appellant raised credible defence of Alibi to dislodge the evidence of the Prosecution by stating that he was elsewhere other than the scene of crime on the date and time of the incident timeously to the police.

It was contended that if the Alibi had been considered it would have created doubt in the mind of the Court.
He relied on the following cases:- IKEMSON VS. STATE (1989) 3 NWLR PART 110 PAGE 455.
– NWABUEZE VS. STATE (1988) 4 NWLR PART 86 PAGE 16.
– ALIYU VS. STATE (2007) ALL FWLR PART 388 PAGE 1123.
– ONAFOWOKAN VS. STATE (1987) 3 NWLR PART 61 PAGE 538 (SC).
– ADEDEJI VS. STATE (1971) 1 ALL NLR PAGE 75.
– SALAMI VS. STATE (1988) 3 NWLR PART 85 PAGE 670.

– OMOTOLA VS. STATE (2009) 7 NWLR PART 1139 PAGE 148.
– EBENEHI VS. STATE (2009) 6 NWLR PART 1138 PAGE 431.
– NDUKWE VS. STATE (2009) 7 NWLR PART 1139 PAGE 43.

Learned Counsel for the Appellant finally submitted that the Court ought to discharge the Appellant on his defence of Alibi.
On issue No.2 which is whether the trial Court rightly admitted and relied on the Appellant’s Confessional Statements having regard to the circumstances of the case.

The learned Counsel for the Appellant referred to Exhibit “C” which is the Confessional Statement of the Appellant. He contended that where an Accused person denies making a Confessional Statement, that the Court must decide whether he made it or not at the end of the trial. He relied on the following cases:- IKPASA VS. BENDEL STATE (1981) 5 S.C. PAGE 103.
– OSUAGWU VS. STATE (2013) 5 NWLR PART 1347 PAGE 360.

It was submitted on behalf of the Appellant that before an accused can be convicted on his Confessional Statement such confession must be direct, positive and properly proved. He relied on the following cases:-
– AKPAN VS. THE STATE (1990) 7 NWLR PART 160 PAGE 101.
– IBEME VS. STATE (2013) 10 NWLR PART 1362 PAGE 333.
– OKOH VS. STATE (2014) 8 NWLR PART 1410 PAGE 502.

It was also contended on behalf of the Appellant that the Confessional Statement of the Appellant is not consistent with the other ascertained facts.

Learned Counsel submitted that where an accused person gives evidence which is contrary to the extra – judicial statement, the Court should take extra – judicial statement with caution especially where there is no evidence outside the extra – judicial statement.
He relied on the following cases –EGBOGHONOME VS. STATE (1993) 7 NWLR PART 306 PAGE 383.
– OSUAGWU VS. STATE (SUPRA).
– ISONG VS. STATE (2016) 14 NWLR PART 1531 PAGE 96.

Learned Counsel for the Appellant urged this Court to hold that the trial Court was wrong to ascribe probative value on Exhibit C and relied on it to convict and sentenced the Appellant.

It was also contended on behalf of the Appellant that the evidence of PW1, PW2, and PW3 conflicted one another.

It was stated that PW2 did not conduct any investigation when his attention was called to arrest the Accused/Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It was further stated that while PW1 was emphatic that the scene of crime was Degun, PW2 informed the Court that it was Imoru while PW3 stated that the incident started in Degun and ended at Imoru.
He submitted that if the trial Court had considered all the discrepancies, its findings would have been different.

It was contended on behalf of the Appellant that if truly the Appellant used or threatened violence, the alleged small shot gun and screw driver used ought to be tendered. It was also stated that the motorcycle stolen was not recovered.

The learned Counsel for the Appellant submitted that the Prosecution ought to obtain and tender in evidence the medical report to show that actually the PW1 sustained injury from the hit from the butt of a gun or the screw driver.

In the circumstance of this case, the learned Counsel for the Appellant urged that the issues in this appeal ought to be resolved in favour of the Appellant and that he should be discharged and acquitted.

The learned Counsel for the Respondent in his response submitted that the Prosecution in a Criminal trial is required to prove his case against an accused person beyond reasonable doubt. He referred to the cases of – JUA VS. THE STATE (2010) 2 SCM PAGE 68 AT 70.
– BELLO VS. STATE (2010) 12 SCM PART 2 PAGE 28 AT 34.
– NWOSU VS. THE STATE (2004) 15 NWLR PART 897 PARAGRAPHS F – H.
He went further in his submission that Conspiracy is a matter of inference from certain Criminal Acts of the parties concerned.

He went further that there was meeting of the mind with the Appellant and his accomplice. He referred to Exhibit “C” which he stated showed how the Appellant and his gang members have been carrying out Armed Robbery operations together. And as regards the operation of 16/12/2015, it was stated that the Appellant narrated the part each gang member played in the performance of the crime which learned Counsel contended established that they all acted in common.

The learned Counsel for the Respondent referred to the case of – OSUAGWU VS. THE STATE (2013) LPELR –19823 SC, in which he stated that the Court enumerated the ingredients of the offence of Armed Robbery as follows:-
(a) That there was a Robbery
(b) That the Accused/Appellant was armed

The learned Counsel submitted that on first and second ingredients, that there was a Robbery on 16/12/2015. He referred to Exhibit “C” and the evidence of PW1.

As for the 3rd ingredient, learned Counsel for the Respondent contended that the evidence of the Prosecution witnesses confirmed that the Appellant and one other were at the scene of crime and they were also armed with a gun.
It was submitted on behalf of the Respondent that PW1, the victim of the Armed Robbery incident who is also the eye witness recognized the Appellant as one of the Armed Robbers that robbed him while armed.

Concerning the issue of Alibi raised, the learned Counsel for the Respondent contended that the Alibi was raised for the first time during the trial. He went further that the Alibi was not disclosed to police at the time the Appellant was volunteering his statement i.e. Exhibit “C”.

It was also submitted on behalf of the Respondent that the evidence of PW1, PW2 and Exhibit “C” fixed the Appellant to the scene of crime. It was urged on this Court to affirm the decision of the trial Court.

On issue 2 whether the trial Court rightly admitted and relied on the Appellant’s Confessional Statement having regard to the circumstances of the case.

The learned Counsel for the Respondent relied on Sections 28 and 29 of the Evidence Act 2011, and submitted that a Court can rely solely on the Confessional Statement of an accused person to convict him. He referred to the cases of – AKPA VS. STATE (2008) 8 SCM PAGE 68 AT PAGE 70.
– OGUDO VS. THE STATE (2011) 11-12 PART 1 SCM PAGE 209 AT 212.
– LASISI VS. THE STATE (2013) 6 SCM PAGE 97 AT 113.
– JIMOH VS. THE STATE (2014) 11 SCM PAGE 216.

It was submitted on behalf of the Respondent that the learned trial Judge having found that Appellant’s statement was made voluntarily, was right to have considered same in convicting the Appellant.

It was also submitted that although the Appellant retracted his confessional statement but the retraction will not adversely affect same once the Court is satisfied as to its truth.

It was finally submitted by Counsel for the Respondent that the evidence before the trial Court had established beyond reasonable doubt that the Appellant and one other was armed and they Robbed PW1 on 16/12/2015. He urged this Court not to disturb the findings and decision of the trial Court.

The learned Counsel for the Appellant filed the Appellant’s Reply Brief in which the issues in the appeal were re-argued.
This is unnecessary. The Reply brief is meant to tackle new issues that were not canvassed in the Appellant’s Brief but were found to be included in the Respondent’s brief.
It has been stated many times by this Court and the Supreme Court that a reply brief is not meant to be a repetition of the argument in the Appellant’s brief, on the contrary a reply brief is to address new points made in the Respondent’s brief which the Appellant did not address in this brief of argument.
See – DOGO VS. STATE (2013) 10 NWLR PART 1361 PAGE 160.

RESOLUTION
It is trite law that the Prosecution in a Criminal trial is required to prove its case against the accused person beyond reasonable doubt.
See – Section 135(1) of the Evidence Act 2011 and the following cases:-

The Appellant in this case was charged and convicted for the offences of Conspiracy to commit Armed Robbery and Armed Robbery.

On the first ingredient of Armed Robbery. It is clear that from the evidence presented by the Prosecution that there was a robbery on the 16/12/2015.
The PW1 in proof of the charge against the Appellant testified as follows:-
“PW1 – Sworn on the Quran and states in Hausa.
I am Aminu Gado. I am a labourer. I live at Central Mosque towards Italapo, Ijebu Ode, Ogun State.
I know the accused person. I can remember 16/12/15. On that day I took the accused person in the town as a passenger on my bike. They were two, I took them to Degun. When I took them to Degun, they said I should enter one corner. I have forgotten the junction I took them from. We entered the corner and they stopped me and came down. Immediately they dropped, one stayed by my right hand side and the other by my left hand side. When they positioned themselves left and right, I thought they want to give me money but they asked me to surrender the key of my motorcycle. Immediately I refused to surrender the key one of them now brought out a gun. Immediately they point the gun at me, the accused person said they should shoot me, when his second refused, the accused collected the gun from his second and used the butt of the gun to hit me on my face by the nose. After the accused hit me on the face with the butt of the gun, he directed his second to run away with my motorcycle and that he will take care of me. The accused thereafter observed blood coming out from the wound he inflicted on my face with the butt of the gun and he attempted to run away, but I held unto him firmly, wrestled with him and he fell on the ground. All the while, blood was gushing from my face. While I wrestled the accused to the ground I held him by the throat. When I observed he was unconscious, I carried him and took him to the crowd. The crowd assisted in tying the accused with a rope, the police were thereafter called. They came and took the accused away. The incident happened at about 7.30p.m. That was the time I took them on my motorcycle. I cannot remember the actual time we got to the corner where they attempted to snatch my motorcycle.
The crowd gathered when I was shouting and they saw me with the accused person. They snatched my motorcycle and took it away, second person I carried with the accused person took the motorcycle away. I cannot remember the registration number of the motorcycle off hand, but I wrote it on a sheet of paper which I have in my pocket now.
Adebayo – I apply that the witness be allowed to refresh his memory by looking at the paper and telling the Court the number.
Hon. Onademuren – No objection.
Court – Order as prayed.
Evidence in chief continues.
Witness brought out the paper, he says he cannot read it out, hence he wrote it on a sheet of paper.
Court – Interpreter to collect the paper and read the number on it to the hearing of all.
Interpreter – The number is TRE 218 VH.
Evidence in chief continues.
The motorcycle has particulars but I cannot remember where I kept it now. I now say I gave the particulars to the police. I gave them the original copy.

It was the money I gathered together from my farming activities in the North that I used to buy a motorcycle when I came to Ijebu Ode and became an Okada rider. The motorcycle was given me on installments by Lawali (Lawal in Yoruba). The original particulars is still with the police. I can identify a copy of the particular but I cannot read it. Apart from the original I gave to the police, I don’t have any copy with me. Witness shown a document – he identifies it as a copy of the particulars of the motorcycle. He says the original is with the police at Igbeba Police Command. Ever since the incident happened, I did not see the police because I did not go back to the station. I sustained injury to my nose during the incident and I was taken to the hospital by the police for treatment. The police came with their van and took me and the accused person to the station. Thereafter they took me to the hospital. My motorcycle was taken away; they also stole my phone and the money I made that day. The phone was Techno. I don’t know the exact amount they collected from me because I was still working. Myself and the police went to the scene of crime but we cannot recover the gun. I was not the one that wrote the registration of the motorcycle on the paper. It was my friend who helped me to write it”.

The PW2 also testified as follows:-
“PW2 sworn on the Bible and states in English. I am Inspector Adeleke Rotimi. I am serving in Ogun State attached to area command, Igbeba, Ijebu-Ode. I know the accused person. I know Aminu Gado; he is the complainant. I remember 16/12/15. I am the Sectional Head in charge of surveillance; a call came in around 8.30pm that a thief was arrested at Imoru that we should move there and see what was happening there. Me and my team moved down to the scene. On getting there we met a crowd of people. We came down from our vehicle and forced our way through the crowd to the scene. On getting there, we saw the accused tied on both arms and legs. Then I rushed to carry him and put him inside our vehicle. Somebody now ran after us, deeply soaked with blood. He has been stabbed on his left cheek. Because he is an Hausa person; he was telling me, his machine, his machine has gone. I also asked him to enter our vehicle and we drove out of the place. When we got to the station, I brought the accused person down from the vehicle and loosen the rope on his arms and legs. I then took him and the complainant (PW1) into my office. I gave the PW1 medical form to go to the hospital because of the injury he sustained and the blood on him. I then detailed Inspector Fabusola Kehinde to investigate the matter. The person that ran after me soaked with blood was the complainant (PW1)”.

The testimony of PW1 i.e. the victim of the Armed Robbery attack showed that he was robbed and wounded by the Appellant and his Accomplice now at large on 16/12/2015. This was corroborated in Exhibit “C” – the Confessional Statement.

The testimony of PW1 set out above and Exhibit “C” established beyond reasonable doubt that there was a Robbery attack on PW1 on 16/12/2015.

On the second ingredient of Armed Robbery, it is evident that the Appellant was armed on 16/12/2015.
The evidence of PW1 also showed that the Appellant was armed during the Robbery attack. It was the Appellant who used the butt of the gun to hit PW1 on his face/cheek. It was the accomplice of the Appellant who took away the motorcycle of PW1.

The evidence of the PW1 that he was injured was corroborated by PW2 who took PW1 to the hospital for treatment.
The evidence of PW1 and PW2 set out above established beyond reasonable doubt that the Appellant and his Accomplice were armed when they Robbed PW1.
In this case, the PW1 did not only recognize the Appellant, he was also the person that carried the Appellant out of the corner where the incident happened to the main road before the arrival of PW2.
The Appellant made a Confessional Statement placing himself at the scene of crime.
In OSUNG VS. STATE (2012) 18 NWLR PART 1322 PAGE 256, it was held among others by the Supreme Court that:-
“By virtue of the Provisions of Section 1 of the Robbery and Firearms (Special Provisions) Act 2004 “Any person who commits the offence of Robbery shall upon trial and conviction under the Act, be sentenced to imprisonment for not less than 21 years.
(2) If …(a) any offender mentioned in subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company with any person so armed or
(b) At or immediately after the time of the Robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
“By the above Provision, it is not necessary that the person charged under the above Provision be armed with any Firearm or any offensive weapon … himself once he is in the company of any person who is so armed when the offence was committed, it will suffice to find him guilty of the offence of Armed Robbery.”

On the (3rd) third ingredient of Armed Robbery, it is also clear that from the testimony of PW1 and PW2 and Exhibit ”C” i.e. the Confessional Statement that the Appellant while armed participated in the Robbery.

The PW1, the victim of the Armed Robbery incident and also an eye witness recognized the Appellant as one of the Armed Robbers that robbed him while armed.
The Appellant made Confessional Statement placing himself at the scene of crime. The identity of the Appellant was not in issue because he was vividly identified and recognized by the PW1.
The PW1 apprehended the Appellant himself.
In ADEBAYO VS. STATE (2014) ALL FWLR PART 743 PAGE 1994, it was held among others by the Supreme Court as follows:-
“…it is also settled law that an identification parade is very essential and useful whenever there is doubt as to the ability of a victim to recognize the suspect who participated in carrying out the crime or where the identity of the said suspect or accused person is in dispute. However, where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender…”
Also in OSUAGWU VS. THE STATE (2013) 1 SCM PAGE 170 AT 182, it was held among others by the Supreme Court as follows:-
“…an accused person who confesses to have committed the offence for which he is charged, an identification parade is clearly unnecessary. It would amount to a waste of time to go looking for the person who committed an offence which that person has come forward to say that he committed the offence…”
In this case the Appellant in Exhibit “C” stated that:-
“…by pretending to be passenger and ride on Hausa motorcycle from Degun street to Imoru where we finally robbed the Hausa boy of his motorcycle…”
The Appellant identified himself by Exhibit “C” i.e. the Confessional Statement.
In Exhibit “C” the Appellant gave graphic details of his involvement and these were sufficiently corroborated by the circumstantial evidence of the Prosecution witnesses.
See – ADEYEMI VS. THE STATE (1991) 1 NWLR PART 170 PAGE 679 AT 694.
The evidence of PW1 and that of PW2 fixed the Appellant at the scene of crime.

The PW1 in his testimony stated that the Appellant used small shot gun and a screw driver to commit the offence.
The learned Counsel for the Appellant submitted that neither the small shot gun nor the screw driver was recovered or tendered in evidence.
In Exhibit “C” the Appellant admitted being with screw driver while the other person now at large was with gun.
It is my view that whether the screw driver was metal or not and whether the gun if recovered turned out to be a toy gun it will not vitiate the evidence before the lower Court that the offence was an Armed Robbery incident. Furthermore non- tendering of the weapon used for the Robbery will not vitiate the Prosecution’s case.
See – OLAYINKA VS STATE (2007) 9 NWLR PART 1040 PAGE 561.

The Appellant was also charged with the offence of Conspiracy to commit Armed Robbery.
The learned Counsel for the Appellant contended that the Prosecution did not prove the offence of Conspiracy to commit Armed Robbery beyond reasonable doubt against the Appellant.

The learned Counsel for the Respondent on the other hand contended that the offence of Conspiracy to commit Armed Robbery was proved beyond reasonable doubt against the Appellant.
The learned trial Judge convicted the Appellant for the offence of Conspiracy to commit Armed Robbery.

In this appeal under consideration, the evidence before the trial Court as given by PW1 was that two passengers boarded his motorcycle to a destination and on getting to a corner, the two passengers which included the Appellant attacked him with screw driver and also hit him with the butt of the gun.

These pieces of evidence corroborated the Appellant’s Confessional Statement i.e. Exhibit “C”.
The evidence of PW1 and PW2 were set out earlier in this Judgment.

I am of the view that the evidence of PW1 on the fact that his assailants were more than one was not controverted or discredited before the trial Court.
The Appellant admitted being at the scene of crime and he was also apprehended by PW1 after they both fought and the Appellant lost to the PW1.

The only inference that could be drawn from the scenario is that there was meeting of minds by the Appellant and his accomplice. I therefore infer Conspiracy.
A careful reading of Exhibit “C” the Confessional Statement would reveal that the Appellant conspired to commit the crime.

The Appellant stated vividly how he and his gang members have been carrying out Armed Robbery operations together.
The Appellant narrated in Exhibit “C” the part played by each gang member in the execution of the Armed Robbery operation of the 16th day of December 2015.

In the circumstance, I am of the view that the trial Court was right when it held that Prosecution proved the offence of Conspiracy beyond reasonable doubt. The retraction by the Appellant of his Confessional Statement at the trial is of no effect in the admissibility of same.
It is very clear that the Appellant acted in common with the other person at large to rob PW1 on the 16th December 2015.

In this case, the Appellant raised his Alibi for the first time during trial. He stated that on the day of the incident he went to visit his brother at Imoru but met his absence and left for his house at about 8pm. And as he was by the road side to board a tricycle, he was held from the back by his trouser.
It is necessary to state at this juncture that this Alibi was not disclosed to the Police at the time the Appellant was volunteering his statement because it is not in Exhibit “C”. The Appellant did not afford the Police the opportunity to investigate the Alibi as requested by Law.
It is the settled position of the Law that the Appellant ought to inform the Police of his Alibi and also furnish Police with detailed particulars of his where about so that the Police can investigate the Alibi.
It is trite law that the defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere, other than the scene of the crime and could not have been involved in the commission of the crime with which he is charged. See – SHEHU VS THE STATE (2010) ALL FWLR PART 523 PAGE 1841.
– EGWUMI VS STATE (2013) 13 NWLR PART 1372 PAGE 525.
In OCHEMAJE VS THE STATE (2008) 10 SCM PAGE 103 AT 107, it was held among others thus:
“…the Police in order to investigate a plea Alibi, special particulars of the where about of the accused (Appellant) at the maternal time …. It is not the law that the Police should be involved in a wild goose chase for the whereabout of an Appellant (accused) at the time the crime was committed…. The accused must give specific particulars of his whereabout at the material time to enable the Police move straight to the place to carry out the investigation required by law.”
In the circumstance, I am of the view that the Appellant’s Alibi made during trial is an after-thought which the Court cannot rely upon. The evidence of PW1, PW2 and Exhibit “C” fixed the Appellant to the scene of crime, the defence of Alibi is therefore destroyed.

It was submitted on behalf of the Appellant that the Prosecution case before the trial Court is fraught with discrepancies, contradictions and or inconsistencies in evidence.
In this case, the evidence presented by the Prosecution in proof of the ingredients of the offences charged and the Confessional Statement are positive, direct and unequivocal, therefore I am of the view that not all discrepancies, contradictions and or inconsistencies in the Prosecution’s case will affect the substance or credibility of the evidence of the witnesses.
See the following cases:-
– MUSA VS THE STATE (2013) SCM PAGE 79 AT 93.
– ATTAH VS STATE (2010) 5 SCM PAGE 57 AT 60.

The next issue to consider is whether the trial Court rightly admitted and relied on the Appellant’s Confessional Statement having regard to the circumstances of the case.

The learned Counsel for the Appellant stated that on 19/2/2018 the PW3 tendered Exhibit “C” as the Confessional Statement of the appellant but that the defence objected on the ground that the statement was not voluntary. He went further that the evidence of the Appellant at the trial is contrary to the said Confessional Statement.

He submitted that where the accused person gives evidence which is contrary to the extra judicial statement, the Court should take the extra Judicial Statement with caution where there is no evidence outside the extra Judicial Statement. He relied on the following cases:-
– EGBOGHONOME VS STATE (SUPRA)
– OSUAGWU VS STATE (SUPRA)
– ISONG VS STATE (SUPRA)

Learned Counsel for the Appellant urged this Court to hold that the trial Court was wrong to ascribe probative value on Exhibit “C”.

In his response to the submission of Counsel for the Appellant, the learned Counsel for the Respondent submitted that a trial Court can rely solely on Confessional Statement of an accused person to convict him. He relied on AKPA VS STATE (2008) 8 SCM PAGE 68 AT 70.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He stated that an objection was raised on the involuntariness of the Appellant’s statement and trial within trial was conducted before the Confessional Statement was admitted in evidence as Exhibit “C”.

He submitted further that the learned trial Judge having found that the Appellant’s statement was made voluntarily, was right to have considered same in convicting the Appellant.

RESOLUTION
It is trite that confession is an admission made by an accused person stating or suggesting the inference that he committed the crime.
See – SECTIONS 28 AND 29 (1) OF THE EVIDENCE ACT 2011
An accused person can be convicted on his Confessional Statement alone where same is direct, positive and proved.

In this appeal, at the trial Court an objection was raised on the involuntariness of the Confessional Statement made by the Appellant. As a result a trial within trial was conducted and the Confessional Statement was later admitted in evidence as Exhibit “C”.
In LASISI VS STATE (2013) 3-4 SC PART 1 PAGE 58, it was held by the Supreme Court among others thus:-
“Once a Confessional Statement is admitted following a trial within trial proceedings, it becomes very difficult for an Appellate Court to intervene on an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the Appellate Court is not privileged to have seen the witnesses testify nor watch their demeanor, etc.”

The Supreme Court went further in the above Judgment to hold as follows:-
“…the procedure of trial within trial is not designed to determine whether an accused person made the statement but whether he made it voluntarily. In other words, an accused person must admit making the Confessional Statement before he could raise the circumstances in which the confessional Statement was made by him.”
In this appeal, trial within trial was conducted at the trial Court before Exhibit “C” was admitted in evidence.
Where an accused person admits making the statement but contends that he did not make it voluntarily but under duress or torture then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. Nevertheless when the trial Court is satisfied that the statement was made voluntarily, the Court is entitled to admit it as Exhibit in evidence before the Court. But where the Appellant denied making the statement, not that he was forced to make it under duress then trial within trial should not be conducted. See – AKPA VS STATE (2008) 14 NWLR PART 1106 PAGE 72.

Therefore, having regard to the nature of evidence given during the trial within trial which this Court as an Appellate Court is not privy to, the learned trial Judge is therefore right to have admitted the Confessional Statement as Exhibit “C”.

The Appellant retracted his Confessional Statement during trial but it is settled Law that a retracted Confessional Statement will not adversely affect same once the Court is satisfied as to its truth.
The Confessional Statement i.e. Exhibit “C” in this appeal having been corroborated by the evidence of the Prosecution witnesses has met the requirement of the law as laid down by the Supreme Court in the case of OSENI VS STATE (2012) 5 NWLR PART 293 PAGE 351.
Consequent upon the forgoing, I am of the view that the Appellant can be convicted on the said Exhibit “C”.

In the result, from the totality of the evidence of the Prosecution witnesses along with Exhibit “C” i.e. the Appellant’s Confessional Statement, one can safely come to the conclusion that the Appellant committed the offences for which he was charged with and convicted. The learned trial Judge was right in convicting him.

In the circumstance, Issue numbers 1 and 2 are resolved in favour of the Respondent and against the Appellant.
This appeal therefore lacks merit and it is dismissed.
The Judgment of the lower Court in charge NO: HCJ/19C/2016 – BETWEEN: THE STATE VS ADENEYE OLUWAROTIMI delivered on the 4th day of October, 2018 is hereby affirmed.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading the draft of the judgment delivered by Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and that it be dismissed.

From the facts of the case, it was indisputably established that the Appellant was arrested at the scene of crime, and in the process of committing the offence of Armed Robbery for which he was charged, tried and convicted. Having been “caught in the act”, so to say, there was no need to lead evidence on the issue of identity. The plea of alibi therefore became irrelevant, the Appellant having been fixed to the scene of crime. The evidence against the Appellant was overwhelming.

I therefore have no hesitation in agreeing with my learned brother, that this appeal has no merit. It is hereby dismissed.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother, Jimi Olukayode Bada, JCA. I am in full agreement with His Lordship’s reasoning and conclusion.

The law is settled that the best form of evidence is that of the eye witness who gives direct evidence and an on the spot narration of the event as it happened. Furthermore, in criminal proceedings, a conviction may be secured on the credible evidence of a single witness that point irresistibly to the guilt of the accused person. See OLAKUNLE V. STATE (2017) 6 S.C. (PT. 111) 1; AKINLOLU V. STATE (2016) 2 NWLR (PT. 1497) 503.
In UDO V. STATE (2018) 8 NWLR (PT. 1622) 462, the Supreme Court, per Rhodes-Vivour, JSC held as follows:
“Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.”
In the instant appeal, the nominal complainant (PW1) gave a direct and on the spot narration of the robbery incident. He testified that after he was robbed, he held on to the Appellant while his accomplice went away with his Motorcycle. He wrestled with the Appellant and handed him over to the crowd that gathered. The crowd assisted him to tie up the Appellant. PW2 testified that upon receiving information of the robbery, he went to the scene of crime. He gave eye witness evidence that he met the Appellant tied up in the midst of the crowd. The eyewitness account was direct in establishing that PW1 was robbed on 16th of December and that the Appellant participated in the robbery.

For the above and the fuller reasons adumbrated in the lead judgment, I agree that this appeal is devoid of merit and should be dismissed. I also dismiss the appeal affirm the Judgment of the lower Court.

Appearances:

FRANCIS OGUNBOWALE with him, Anthony Banjo and Mrs.
Valentine Ogunbowale For Appellant(s)

OLUSEGUN OLAOTAN (Director Public Prosecution Ministry of Justice, Ogun State) with him, Mrs. Abimbola Akisanya (Chief State Counsel Ministry of Justice, Ogun State) For Respondent(s)

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