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Olawoye V. State (2022) LLJR-SC

Olawoye V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant, who was arraigned before the Kwara State High Court, on a two-count charge of conspiracy and armed robbery, was alleged to have conspired with “two others at large” and robbed “Abdulrasaq Abubakar”, while armed with firearms and other dangerous weapons.

At the trial, the said “Abdulrasaq Abubakar” testified as PW3 and the other witnesses called by the Prosecution included his brother, Bakare Muideen LPW2J, who was also a victim; a Vigilante member, Edungbola Adeniyi (PW41 who narrated how the Appellant was caught after the said robbery, and a mask, 3 handsets and money (new notes) were found on him and Saka Adetoro (PW51, who is PW3’s neighbour.

PW1 Corporal Opaluwa, a Police Officer and an Exhibit-Keeper, identified the sum of N23, 150 in fifty Naira denomination, iron cutter, a black knitted mask cap, and a Techno GSM handset, as the items he registered in connection with the case against the Appellant, and the said items were admitted in evidence as Exhibits P1, P2, P3 and P4.

​The Investigating Police Officer, Bunmi Abdulrasheed Adegoye, attached to ‘F’ Division, Tanke, Ilorin, who testified as PW6 identified Exhibits P3 P2 and P4 and he also testified that a Photographer took pictures of the scene, and that he recorded the Appellant’s Statement. The Defence Counsel objected to the admissibility of the photographs and the said Statement of the Appellant recorded by PW6 in evidence, and in its ruling on the objection, the trial Court concluded as follows:

“Mere retraction of the Statement – – does not ipso facto render the Statement inadmissible – – – The accused, apart from thumb printing, also signed the Statement. The Court will, however, concede to trial within trial to test the voluntariness of the Statement – – The tendering of the photographs without notifying the defence amounts to taking the defence by surprise and amounts to denial of fair hearing – – For this reason, the photographs and negatives sought to be tendered are hereby rejected in evidence.”

After the trial within trial in which two Police Officers, including PW6 as T.P.W1 testified, the trial Court held in its Ruling of 25/3/2013 that:

“In the absence of voluntariness in the Statement allegedly made by the accused due to some doubts created in the mind of the Court as a result of discrepancies in the statement and accused’s evidence in trial within trial which doubt must and is resolved in favour of the Accused, coupled with (his) assertion that he was made to sign an already prepared Statement, Statement sought to be tendered by the Prosecution is hereby rejected and shall be marked tendered but rejected.”

The main trial continued with PW6 then PW7 Sgt. Monday Ogidiagba, of the Special Anti-Robbery Squad ISARSJ, Kwara Police Command, testified that as Investigating Police Officer at SARS he recorded the Appellant’s Statement after the case was transferred from F Division.

Once again, the Defence Counsel objected to the admissibility of the Statement recorded by PW7 “on the ground of involuntariness”, and the trial Court conducted another trial within trial wherein PW7 and two other Police Officers testified. The Appellant also testified, and in its Ruling of 14/10/2013, the trial Court concluded as follows:

I believe the Prosecution as against the accused person. I am satisfied that the Statement sought to be tendered was made voluntarily by the Accused. There was no application of threat, apprehension or promise. The objection is overruled, and the Statement is admitted in evidence. It is marked Exhibit P5.

After the Prosecution closed its case, the Appellant opted to make a No-Case Submission, and in overruling same, the trial Court stated –

“I have carefully and with rapt attention studied the submissions of the Prosecution and that of the defence as contained in their respective Written Addresses. I already read in between the lines the available evidence before this Court with respect to the Prosecution’s case and considered the Exhibits admitted. I am on the strong view that a prima facie case has been established against the Accused Person, Olanrewaju Olawoye, which necessitated his entering a defence. The Submission on No-Case to answer by the Accused Person is hereby overruled. Olanrewaju Olawoye is accordingly called upon to enter his defence.”

The Appellant testified as DW1 and did not call any other witnesses. He denied the allegations and said that he was arrested by the Police while he was going to “Ahmadiyya Mosque along Tanke Road around 8.40pmon 22/8/2011” and was taken to the Police Station ‘F Division’.

In his judgment delivered on 30/4/2014, the learned trial Judge, Saleeman, J., found the Appellant guilty as charged for conspiracy and armed robbery and convicted and sentenced him to death by hanging. The Appellant appealed to the Court of Appeal. But, in its judgment delivered on 16/11/2017, the Court of Appeal resolved the four Issues for Determination canvassed in the appeal against him, and held that:

(i) Identification parade is not the only way of establishing the identification of an Accused Person, and where, as in this case, “the Accused Person, by his confession, has identified himself, there would be no need for any further identification parade”.

(ii) The learned trial Judge was right when after rejecting the Appellant’s Statement taken at “F” Division Tanke, in evidence, “still proceeded to rely on Exhibit P5 to convict the Appellant”.

(iii) The evidence of PW2 and PW3 and contents of Exhibit P5 was that Appellant as well as Wole and Ayo entered the compound, that Appellant wore a mask supplied by Ayo and Wole. Both Ayo and Wole were each carrying guns with which they threatened the occupants to bring their money at gun point. Furthermore, “the Appellant in Exhibit P5 admitted that some of the pack of N50 notes stolen at the scene were collected by Ayo and given to him for keep – – From the above, the learned trial Judge came to a right conclusion that Appellant was guilty of conspiracy.”

(iv) Exhibit P5 was robustly corroborated by the evidence of PW2 and PW3 to fix the Appellant squarely to the scene of crime and “that he committed the offence with others now at large”.

The Court of Appeal dismissed the appeal and affirmed the judgment, conviction and sentence passed on the Appellant by the trial Court.

Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing four Grounds of Appeal, and he has distilled the following Issues for Determination therefrom in his Brief of Argument:

  1. Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 Laws of the Federation of Nigeria, 2004 without an identification parade as required by law.
  2. Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and thereafter sentenced the Appellant to death for the offence of Criminal Conspiracy.
  3. Whether the lower Court was right when they affirmed the decision of the trial Court that the Appellant is a member of the Armed Robbers and he fully and actively participated in the crime.

The Respondent, on the other hand, submitted in its Brief of Argument that the two Issues for Determination in this Appeal are as follows –

(1) Whether by the combined effect of the evidence of PW3, PW5 and Exhibit P, the lower Court was right in affirming the decision of the trial Court that identification parade is not necessary in the course of the conviction of the Appellant.

(2) Whether the lower Court was right when it affirmed the decision of the trial Court convicting the Appellant of the offences of Criminal Conspiracy and Armed Robbery.

But under issue 1, the Respondent contended that this appeal does not qualify as an appeal because a review of that issue will reveal that it does not attack the ratio of the Court of Appeal’s decision and that:

Paragraphs 5.0.1.1 – 1.1.18 of issue 1 in the Appellant’s brief in this appeal is a repetition of paragraphs 5.1-5.1.16 of issue 1 in the Appellant’s brief before the Court below.

It cited CPC V. Ombugadu (2013) All FWLR (Pt. 706) 406, Odum V. Chibueze (2016) All FWLR (Pt. 848) 714, and Eyigebe V. Iyaji (2013) All FWLR (Pt. 703) 1901, and submitted that this appeal can be likened to an appeal from the trial Court to this Court and it was argued against the well settled procedure of appeals, therefore, it is doomed ab initio and hearing it further, would amount to nothing, but a waste of time.

Simply stated, it is challenging the competency of this appeal on the ground that the Appellant’s submissions in his Brief of Argument on the issue of identification parade is a repetition of his submissions on the same issue in his Brief of Argument filed at the Court of Appeal.

The Appellant did not file a Reply Brief or react to the objection. But this Court cannot close its eyes to the objection raised. Besides, appellate Courts are enjoined to examine the record in relation to the grounds of appeal filed and issues for determination; and “thereafter determine whether such issues were properly decided having regard to the evidence adduced by the Parties and the applicable laws” — see Ndike V. State (1994) 8 NWLR (Pt. 360) 33 and Eyigebe V. Iyaji (supra), cited by the Respondent, wherein the Court aptly observed as follows:

“To be useful in an appeal, an issue for determination canvassed must relate to the facts or law as decided by the Court, whose decision is appealed against and must attack the ratio decidendi.”

In this case, I have scrutinized the record and it is clear from the Final Written Addresses of the parties and the judgment of the trial Court that the issue of identification parade was not raised at the trial Court, and the trial Court never made any pronouncement on the said issue. The Defence Counsel argued in the Appellant’s Written Address that:

“PW2 never saw the accused, as the person that robbed him was masked. The Accused was only identified to him by the Police. On the authority of the Supreme Court, which is binding on this Court, we urge the Court to discountenance the identification done by PW2 as same is unreliable and thus worthless – – – PW3 could not have reasonably identified the person, who robbed him, as he was masked until he removed his mask while backing him on the way out for a fleeting moment before he stepped out. The Accused was then showed to them by the Police as the robber.”

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In its judgment, the trial Court considered the totality of the evidence vis-a-vis the ingredients of the offences charged, and held as follows:

“The shabby and shallow defence of the Accused that he was going to Ahmadiyya Mosque in Tanke when he ran into a waiting vehicle on the invitation of its occupants, who turned out to be Police Officers, and proclaimed his arrest on the basis of being a suspect of an event that concluded and from which he was taken to State CID, cannot be believed in the face of the overwhelming and unchallenged evidence of the Prosecution, who has proved the case against (him) beyond reasonable doubt. He is accordingly convicted for the offence of armed robbery – – – There is surfeit of evidence directly linking the Accused Person with others at large,which evidence is a direct result of a well-orchestrated plan and role played by the Accused and two others at large – – Based on the findings by this Court, (he) is also guilty of the offence of conspiracy contrary to S. 6B of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004. He is accordingly convicted.”

As I said, there is nowhere in its judgment where the trial Court made any reference to the said issue of identification parade. Nonetheless, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing six Grounds of Appeal and his complaint in Ground I is that:

“The learned trial Judge erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when it (sic) convicted and sentenced him to death by hanging for the offences of conspiracy and armed robbery contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 LFN 2004 without an identification parade as required by law.”

In his Brief of Argument filed at the Court of Appeal, he formulated four Issues forDetermination, and issue 1 distilled from Ground 1 is:

Whether the learned trial Judge was right when it (sic) convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R.II Laws of the Federation of Nigeria, 2004 without an identification parade as required by law.

In resolving the said issue against him, the Court of Appeal held that –

“In Usung V. State (2009) All FWLR (Pt. 462) 1203 at 1236-1367, it was held that an identification parade may be dispensed with where: –

  1. There is good and cogent evidence linking the Accused Person to the crime on the day of the incident.
  2. By the Accused Person’s confessional statement, he identified himself.

In the instant case, apart from the evidence of the Prosecution Witnesses linking the Appellant to the alleged offence, there is Exhibit P (sic), the Appellant’s confessional statement, which is also adequately corroborated by other items recovered in the possession of the Appellant such as Exhibits PW2 (sic) – Techno handset, PW3 (sic) dark green mask and P4 – big iron cutter. In this circumstance, one is obliged to declare the truism that it is not in every case that identification parade is necessary, and that identification parade is not the only way of establishing the identification of an accused in relation to the offence charged – – In particular that where, as in (this) case, the Accused, by his confession has identified himself, there would be no need for any further identification parade. Issue One is resolved against the Appellant.”

The Notice of Appeal that the Appellant filed in this Court contains four Grounds of Appeal, and he complained as follows in Ground :

“The Court of Appeal erred in law and thereby breached the Appellant’s constitutional right to fair hearing/trial under Section 36(1) of the 1999 Constitution of Nigeria when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of criminal conspiracy and armed robbery contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R. 11 LFN 2004 without an identification parade as required by law.”

In his Brief of Argument filed in this Court, he distilled issue 1 from the said ground 1 of the grounds of appeal, and I will reproduce it again:

“Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and sentenced the Appellant to death by hanging for the offence of Armed Robbery and Criminal Conspiracy contrary to Sections 6B and 1(2) of the Robbery and Firearms (Special Provision) Act Cap R.II LFN 2004 without an identification parade as required by law.”

In addition to making the same complaints in the said Ground 1 of the Grounds of Appeal that he raised at the Court of Appeal and this Court and distilling the same issue 1 from the said Ground 1 the Appellant also canvassed the same arguments in respect of the said issue 1 in his Brief of Argument that he filed at the Court of Appeal and in this Court.

But that is neither here nor there; the law says that the ground(s) of appeal encapsulate reasons why a decision is considered wrong by the Appellant – Ehinlanwo V. Oke (2008) 6-7 SC (Pt. Il) 123. Therefore, the ground of appeal consists of an error of law or fact alleged by the Appellant as the defect in the judgment he is appealing against – Metal Constr. Ltd. V. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 229 SC.

The Appellant herein is appealing against the judgment of the Court of Appeal, where in he raised the issue of identification parade, therefore, the Respondent’s argument that this appeal can be likened to an appeal from the trial Court to this Court, is completely baseless.

As the Respondent submitted, an appeal is an invitation to a higher Court to review a lower Court’s decision to find out whether, on a proper consideration of facts of the case, and the applicable law, the lower Court arrived at a right decision.

Obviously, the Appellant is asking this Court to review the decision of the Court of Appeal on the issue of identification parade, therefore, the Respondent’s argument that this appeal does not qualify as an appeal and is doomed ab initio, is a misconception of what is at stake in this appeal. This is an appeal, and the said objection thereto lacks merit, and it is hereby overruled.

The Respondent formulated two Issues for Determination in the appeal itself, which I set out earlier, and it is clear to me that its issues are more concise and capture the Appellant’s grievance in this appeal, and so, I will adopt the Respondent’s issues in dealing with the appeal.

On issue 1, the Appellant contends that since PW2 and PW3 did not know him and did not see his face during the commission of the offence, a proper identification parade ought to have been conducted.

He cited Archibong V. State (2004) 1 NWLR (Pt. 855) 488, Ehot V. State (1993) 4 NWLR (PT 290) 675, Adamu V. State (1991) 4 NWLR (Pt. 187) 530, Ani V. State (2009) 16 NWLR (Pt. 1168) 443, and submitted that proper identification is very important in the trial of an accused, especially where circumstances exist to cast doubt on his identity; that the fact that the robbery took place at PW2 and PW3’s residence does not mean he committed it; that the mode of identification adopted by the Police is irregular, and unacceptable in law; and the lower Court was wrong to have affirmed the reliance of the trial Court on such an improper mode of identification to convict and sentence him to death.

​He further argued that it is trite law that in armed robbery cases, proper identification parade ought to be conducted, and in this case, his identification is “blurred and fuzzy”; that he was not apprehended at the scene of the crime or at the time the offence took place, and a formal identification parade ought to have been conducted to identify him as one of the robbers. He cited Martins V. State (1997) 1 NWLR (Pt. 481) 355 and urged this Court to resolve this issue in his favour.

The Respondent, on its part, argued that the Court of Appeal was right to dismiss the appeal on the ground that the evidence of PW3, PW4 and Exhibit P sufficiently identified the Appellant and, as a result, an identification parade was no longer required; that an identification parade is only needed when the suspect’s identity is in doubt, citing Ikemson V. State (1989) 3 NWLR (Pt. 110) 455 and Alufohai V. State (2015) ALL FWLR (Pt. 765) 198 and that in this case, an identification parade was not necessary as the Accused Person was linked to where the offence was committed and the recovery of stolen items from the Accused Person was enough to dispense with an identification parade.

Furthermore, that it is a trite law that when a suspect is arrested or caught at the scene of the crime or at a place so closely connected with the scene of the crime, as in this case, an identification parade should never be conducted for purely cosmetic reasons, citing Ogoala V. State (1991) 2 NWLR (Pt. 175) 509 and that the testimonies of PW3 and PW5 successfully fixed the Appellant to the scene of the crime.

It further submitted that the Appellant, through his confessional statement, implicated himself as one of the perpetrators of the crime; that there was no mistaken identity in this case at all as there was no break in transmission of event between the commission of the crime and the arrest of the Appellant and that the authority ofArchibong V. State (supra), Ehot V. State (supra), Ani V. State (supra) and Martins V. State (supra), cited by the Appellant, are not relevant to this case; and it, therefore, urged this Court to resolve this Issue in its favour.

This issue is easily resolved, and I will say without hesitation that it must be resolved against the Appellant. First off, the Court of Appeal stated the correct position of the law, an identification parade is not a necessity for identification in all cases where there is other evidence leading conclusively to the identity of perpetrators of an offence – see Ikemson V. State (1989) 3 NWLR (Pt. 110) 455, wherein this Court held that identification parade is only essential in the following situations:

– Where the victim of the crime did not know the Accused before;

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– where the victim was confronted by the offender for a very short time; and

– where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.

So, the essence of an identification parade is to enable an eyewitness, who never knew the person accused of the crime before, to pick him out from amongst other people – see Alufohai V. State (2014) LPELR-24215(SC), wherein this Court per Ariwoola, JSC, aptly explained that:

“Identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused is in dispute. But 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.”

So, there are cases where an identification parade is of no use at all, such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or the witness and when evidence adduced is sufficient to establish that he is, indeed, the person that committed the crime – see Jua V. State (2010) 4 NWLR (Pt. 1184) 217, Archibong V. State (2006) 14 NWLR (Pt. 1000) 349, Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors. V. State (2000) 15 NWLR (Pt. 691) 555.

In this case, PW2 and PW3 who were the victims of the crime, testified that the Appellant was wearing a mask when he came into their house with another man, and when they demanded for money, PW2 said he gave them “5 packs of N50 notes of N5, 000 in each pack”

PW3 who identified a mask worn by the Appellant, also testified that:

The Accused Persons collected N150,000 from my brother – – They also collected N50 notes from my brother. When the 2 Accused Persons were about to go out, this Accused (the Appellant) before the Court in the dock removed his mask from his face. He was also wearing a white Jalabia.

PW4 a Vigilante, and the key Witness in this case, testified as follows: On 22/8/11 – – I received from Alhaji IPW31 that armed robbers were in his house – On getting there, I saw the gate of his house wide open. I saw a vehicle reversing at the gate attempting to came out of the gate – Somebody, who came to open the gate for the motor that was reversing challenged me and asked of who I am. I told him I’m a security and he shot at me but fortunately, it missed me. When he realized this, he ran, and I ran after him. He escaped, when I was coming back with the two vigilantes to nail the remaining robbers in the house, we met the Accused wearing a long white Jalabia without shoe or slippers on. He was walking barefooted. When we questioned him of his whereabout, he ran, and we also pursued him. When he got to a main road, he jumped a fence attempting to enter another person’s yard and I captured his legs. We met a face mask in his pocket and 3 handsets and parcel of N50 notes (N25,000) new notes. We handed over the Accused to the Policemen at Tanke, who were at the checking point. The Policemen and we,vigilante, went back to the house with the Accused. From there, we went to the Police Station. From the Police station, we went back to our duty. I can identify the mask and handset found on the Accused. The mask shown to me is the mask worn by the Accused on that day. This is one of the handsets recovered from the Accused – – The handset remains two.

PW5 also said the Appellant “was wearing a white Jalabia”, and when his pocket was searched by the Policemen, who arrived at the scene, “they found in his possession a mask, a phone belonging to Funsho Abdulkareem, and N50 notes”. He also identified Exhibits P3 and P4.

In Exhibit P5, his confessional statement, the Appellant narrated how he met one Ayo, who called him on 22/8/2011 at about 1800hrs, and asked him to meet him at the Post Office, Ilorin. He further stated:

“On getting to Post Office, Ilorin, I call Ayo and he came with one boy, whom he introduced to me as Wole – – He then told me that three of us are going somewhere together. When I asked him where, he told me Tanke area to go and see somebody. Ayo was holding a black polybag containing some items unknown to me – – Three of us then took taxi – – to Tanke, Ilorin. Ayo took me and Wole to one building that is well fenced with barbwire on top of the fence. On getting there, Ayo then told me that the house is where we want to carry out armed robbery operation. I told him I will not participate. He then told me that all money he has given to me that do I think he picked them on the ground? So, he dipped his hand into the polybag and brought out gun and he gave me one wool mask to wear. He later brought out one big iron cutter from the polybag, which he used to cut the barbwire. Ayo also gave Wole one cut to size barrel gun like the one he was holding. He then said that immediately he climbed and enter, I should follow him. So, as he climbed the fence and jumped into the compound, I followed him with the assistance of Wole and jumped inside – Wole also followed me almost immediately. While in the compound, Ayo removed one of the burglary windows and entered the house through the window and opened the main door for me and Wole to enter. While in the house, we threatened the occupants to bring all their money at gun point. Ayo then collected some packets of new N50 notes and gave to me to hold. When I asked Ayo that we should go, he said he wants to collect the car keys. So, Ayo went inside and collected the two car keys and asked me to open the gate. I refused. So, he went to open the gate while Wole was already inside one of the cars – – As Ayo opened the gate, he took to his heels and fire the gun once. Wole also came out of the car and escaped. While I was walking away, I was arrested by a group of vigilantes. A Police Patrol team later came to meet me while with the vigilantes. The vigilante already collected all the money from me before the arrival of the Patrol team. I do not know the exact amount of the mint N50 bundles. But the Police later told me that it was N23,150.00. The wool mask, three handsets and the iron cutter were recovered from me and handed over to the Police. To be sincere, the wool mask, three handsets collected from the victim was recovered from my pocket while the iron cutter was recovered from the scene where Ayo abandoned it.

The evidence speaks for itself, and what it says loud and clearly is that apart from the testimonies of PW2, PW3, PW4 and PW5, which placed the Appellant at the scene of the robbery, and Exhibits P1, P3 and P4 that were found in his pocket almost immediately after the robbery, the Appellant identified himself in Exhibit P5 therefore, the question of conducting an identification parade to identify him does not arise – see Ikemson V. State (supra), wherein this Court per Oputa, JSC, held:

The 3rd Accused – the 2nd Appellant in this Court needed no further identification. By his confession, he identified himself. In his case, there was thus no need for any further identification parade. See also Ogoala V. State (supra), wherein Nnaemeka-Agu, JSC, said:

“I cannot see how it could be urged in favour of the Appellant either that the identity and connection with the crime were in dispute or that there was any need for a formal identification parade. An identification parade is not required where one is caught at the scene of crime or at a place so closely connected with the scene of crime, as in this case. An identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an Accused Person or his connection with the offence charged. To insist that it must be conducted in cases like the instant in which the visual evidence of identity is clear and corroborated by other evidence and the Accused Person confesses to his complicity in the crime is to make a mockery of criminal justice.”

The Appellant has argued that his identification is “blurred and fuzzy”, but to the contrary, the visual evidence of his identity is crystal clear, and it is corroborated by other evidence adduced by the Prosecution. Even more compelling, the Appellant identified himself in Exhibit P5 thus, the Court below is right that an identification parade is ruled out. This Issue totally lacks merit and it is resolved against the Appellant.

Issue 2 is whether the Court of Appeal was right to affirm the trial Court’s decision to convict the Appellant for the offences charged. The trial Court held that there was armed robbery and on the question of whether the Appellant was one of the armed robbers, it stated that:

“The evidence of PW2 is that this accused came to the room wearing a mask while the other two robbers, who came with him, were holding gun but unmasked. It is the evidence of PW2 that the gang (Accused inclusive) demanded and took from him 5 packs of new N50 notes. When (they) were through with PW2, they went to PW3’s room, it was the Accused, according to PW3 that collected the keys to the 2 Honda vehicles and removed his mask when they were about going out of his room to the open yard. PW3 even described the clothes worn by the Accused as a white long sleeve robe or Jalabia, as it is commonly called. (There) is also the direct link of PW4, who met the Accused wearing a torn rough white long sleeve Jalabia walking barefooted in the street alone at night when PW4 was returning to the scene of crime after his failed pursuit of one of the armed robbers that attempted to shoot him. A mask, packs of new N50 notes made up of N23, 050, Exhibit P1 and 3 handsets were found on him immediately after his arrest – – – The Accused himself in his statement confessed that some packets of N50 notes were collected by Ayo and given to him to hold. Accused in his Statement even said that he asked Ayo to let them leave but Ayo insisted on wanting to collect the keys to cars packed by the victims inside their compound. It is therefore not an overstatement that the Accused is a member of the armed robbers and he fully and actively participated in the crime – – In State V. Usman & Ors (2012) 7 SC (Pt. 111) 83, Rhodes-Vivour, JSC, specified vital Witnesses that must testify for the Prosecution in a charge of armed robbery. These are:

  1. The victim of the armed robbery if still alive (i.e., PW3 and PW2).
  2. The Police Officers, who arrested the Accused (i.e., PW4 and PW6).
  3. Evidence of the circumstances in which the accused persons were arrested (Evidence of PW3, PW4, PW5 and PW6).
  4. The Witness or any Witness, who should give credible evidence of the armed robbery (PW4 and PW5 in this case).
  5. If reliance is placed on circumstantial evidence, it must be compelling and lead to only one conclusion – Accused Persons were responsible for the armed robbery. All the above are present in this case.
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In affirming the decision of the trial Court, the Court of Appeal held:

“I agree with learned counsel for the Respondent that the Appellant’s extra-judicial Statement, Exhibit P5, was robustly corroborated by the evidence of PW2 and PW3 to fix Appellant squarely to the scene of crime and that he committed the offence with others now at large. It only remains to add that the learned trial Judge came to a just conclusion when she held at page 116 of the Record thus –

“It is, therefore, not an overstatement that the Accused is a member of the armed robbers and he fully and actively participated in the crime. Though he might be inexperienced as he claimed to be a first timer. Thus, in the case of The State V. Isah Usman & 2 Ors (2012) 7 SC (Pt. Ill) 83, Rhodes-Vivour, JSC, specified vital Witnesses that must testify for the Prosecution in a charge of armed robbery. These are:

  1. The victim of the armed robbery if still alive (i.e., PW3 and PW2).
  2. The Police Officers, who arrested the Accused (i.e., PW4 and PW6).
  3. Evidence of the circumstances in which the Accused persons were arrested (Evidence of PW3, PW4 PW5 and PW6).
  4. The Witness or any Witness, who should give credible evidence of the armed robbery (PW4 and PW5 in this case).”

Issue four is also resolved against the Appellant.

But the Appellant contends that the Court of Appeal wrongly affirmed the decision of the trial Court, who believed the Respondent’s story, even before considering his case and that from the evidence of PW4 the Respondent did not discharge the burden on it since he was not picked up at the crime scene. He cited the following authorities on the ingredients of the offence: Ibrahim V. State (2015) 11 NWLR (Pt. 1464) 188, Oseni V. State (2012) 5 NWLR (PT 1293) 351, Olayinka V. State (2007) 9 NWLR (Pt. 1040) 561, Okosi V. A.G Bendel State (1989) 1 NWLR (Pt. 1043) 542, Bello V. State (2007) 10 NWLR (PT. 1043) 564, and argued that he was not found at the scene and denied the alleged offences, and so, the lower Court wrongly affirmed the said decision.

Citing Section 138 of the Evidence Act, Section 36(5) of the 1999 Constitution, Ajayi V. State (2013) 9 NWLR (Pt. 1360) 589, Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 316, Al-Mustapha V. State (2013) 17 NWLR (Pt. 1383) 350, Omoleye V State (2014) 3 NWLR (Pt. 1394) 232, Ubani V State (2001) 4 NWLR (Pt. 807) 51, on standard of proof, he urged this Court to hold that the Respondent’s evidence fell short of the requirement in criminal cases and it failed to prove the alleged offence against him beyond reasonable doubt;and that the lower Court wrongly substituted its own views and descended into the arena of conflict by supplying a missing link to the case of the Respondent.

The Respondent countered that the lower Court rightly affirmed the decision of the trial Court, “who extensively considered the testimonies of witness and the evidence tendered before giving a well-considered Judgment”. It argued that the evidence of its Witnesses, not only fixed the Appellant to the scene of the crime, but also pointed at him as one, who committed the crime. It cited the following cases on ingredients of the offence – Ogudo V State (2011) 12 SC (Pt. 1) 71, Eke V. State (2011) 1 – 2 SC (Pt. 11) 219, John & Anor V. State (2011) 12SC (Pt. 1) 130 and Adelani V. State (2018) 5 NWLR (Pt. 1611) 18, and submitted that from the evidence led and testimonies of PWI – PW7 the Appellant has been successfully fixed to the scene of the crime; that there were consistencies in the testimonies of all the Witnesses; for instance, that the evidence of PW2 that the Appellant was wearing a white Jalabia, was corroborated by PW4 in his evidence in chief.

Now, from all that has been said so far in this Judgment, it is clear that the key piece of evidence that has the Appellant tied up in knots, and which links him inextricably to the commission of the said crime, is his confession in Exhibit P5 wherein he boxed himself into a corner.

As Tobi, JSC, said in Solola V. State (2005) 11 NWLR (Pt. 937) 460, once a confessional statement is admitted, “the Prosecution need not prove the case against the Accused Person beyond reasonable doubt, as the confessional statement ends the need to prove (his) guilt”. See Oseni V. State (2012) 5 NWLR (Pt. 1293) 357, wherein this Court held:

“In Nigeria, a free and voluntary confession of guilt by (an Accused), if it is direct and positive and is duly made and satisfactorily proved, it is sufficient to warrant conviction without corroborative evidence, as long as the Court is satisfied as to the truth of the Confession.”

In this case, the Appellant’s confession in Exhibit P5 is implicatory and it is corroborated in all material particulars by the testimonies of PW2 PW3 PW4 and PW5, and Exhibits P1, P3 and P4 which were found in possession of the Appellant just a few minutes after the said robbery.

This is the same with his conviction for the offence of conspiracy. In affirming the trial Court’s decision, the Court of Appeal held that:

“The evidence of PW2 and PW3 and contents of Exhibit P5 was that the Appellant with Wole and Ayo entered the compound of PW2 and PW3. That the Appellant wore a mask supplied by Ayo and Wole. Ayo and Wole were each carrying gun with which they threatened the occupants to bring their money at gunpoint – – The Appellant in Exhibit P5 admitted that some of the pack of the N50 notes stolen at the scene of robbery were collected by Ayo and given to him for keep. The above summary of the facts – – settled the requirements of the offence of conspiracy because Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts – – The learned trial Judge came to a right conclusion that the Appellant was guilty of conspiracy.”

The Appellant has argued in this appeal that the Respondent did not show the specific role or part he and the others at large played in the alleged conspiracy to commit armed robbery throughout the trial; that he denied the alleged offence let alone conspiring with anyone and he also categorically denied such involvement; and that the lower Court’s affirmation of the findings of the trial Court “were wrongly inferred”.

Apparently, the Appellant is just mouthing empty words because the two lower Courts found overwhelming evidence to corroborate his confessional Statement, which is part of the Prosecution’s case, and which the law says must be considered for its probative value — see Akpa V. State (2007) 2 NWLR (Pt. 1019) 500, Ikpa V. State (2017) LPELR-42590(SC), and Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383 wherein this Court Belgore, JSC (as he then was), explained that –

“Such a statement, once legally admitted in evidence, will be juxtaposed with all the evidence in Court, including the defence, so as to decide the general merit of the case. But such a Statement is always part of the case for the Prosecution.”

In this case, I see no reason to fault the concurrent findings of the trial Court and the Court of Appeal because the Appellant’s confession in Exhibit P5 is so detailed that no one can be left in doubt as to its truth. His narration of events when juxtaposed with other evidence adduced by the Prosecution shows in no uncertain terms, the prominent role played by the Appellant in the planning and execution of the robbery, wherein Ayo and Wole, “two others at large” were armed with guns, therefore, his arguments to the contrary are worthless and baseless.

As it happens, this Court is always reluctant to interfere with the concurrent findings of the two lower Courts, and this is even more so, when an Appeal turns on the issue of credibility — see Ogundiyan V. State (1991) 3 NWLR (Pt. 181) 519 SC, wherein Obaseki, JSC, observed:

“Without any clear errors in law or fact leading to or occasioning miscarriage of justice, this Court will not interfere with the concurrent findings. It is settled law that there must be clear proof of error either of law or of fact on record, which has occasioned miscarriage of justice before the Supreme Court can upset or reverse concurrent findings.”

In this case, the Appellant’s confession in Exhibit P5 solidified the case for the Prosecution, therefore, there is sufficient evidence to support the concurrent findings of fact by trial Court and the Court of Appeal,and since the Appellant has not presented this Court with any reason at all to interfere with the concurrent findings of the two lower Courts, there is nothing this Court can do about it, and the said findings stand.

Consequently, this appeal lacks merit and it is hereby dismissed. The decision of the Court of Appeal to uphold the judgment of the trial Court, including conviction and sentence of death, is hereby affirmed.


SC.234/2018

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