KOLAWOLE V THE STATE

KOLAWOLE V THE STATE


IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 6TH DAY OF JANUARY, 2012


APPEAL NO: CA/I/125/2010

CITATION: CA (2012) 1 LLIR 2

Before Their Lordships

STANLEY SHENKO ALAGOA, J.C.A.

ADZIRA GANA MSHELIA, J.C.A.

MODUPE FASANMI, J.C.A.


BETWEEN

OKUNADE KOLAWOLE

(APPELLANTS)

AND

THE STATE

RESPONDENTS

 


LEAD JUDGEMENT DELIVERED BY ALAGOA, J.C.A.


 

This is an appeal against the Judgment of Ogunsanya , J. of the High Court of Justice Ijebu Ode, Ogun State in Charge No.HCJ/5C/2008 delivered on the 23rd December 2009. In the said High Court, the Appellant as 1st accused was arraigned with two other persons and tried on a two count charge of Conspiracy to commit armed robbery contrary to section 6(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap. R 11) Laws of the Federation of Nigeria 2004 and Armed Robbery contrary to section 1(2)(a) of the Robbery and Firearms (special Provisions) Act cap R.11, Laws of the Federation of Nigeria 2004.

The case for the prosecution as can be gathered from the Record of Appeal is that one Niyi Oshiyemi, a business man of FAO Constant Petrol Ltd. Ilese Service Station Ijebu Ode and PW1 in the trial High Court below, on the 7th May 2001 at about 9.30p.m. after close of work at his petrol station at Ilese boarded his Mercedes Benz 230 Car accompanied by one Samson Agbo and headed towards the toll gate, He carried along with him the sum of N357,150 cash being the proceeds of sale for the day. While driving along this road, he saw through the side mirror of his car three men on a motorcycle that had no registration number coming from his rear. The men overtook his car, blocked it with their motorcycle and ordered him to come down from the car. The men dragged him out of the car, beat and stabbed him with broken bottles and also took the sum of N357,150 and two Nokia handsets which were in the car. Meanwhile his staff Samson who was in the car with him managed to escape. The men threw his car key away and sped off into the night. Motor-cycle riders who had mobilized themselves in sympathy gave chase but were unable to catch up with the men, on return to the station his brother one Leke Oshiyemi informed him that he saw the 1st accused around the Filling station that day. The matter was thereafter reported to the police who arrested the 1st accused person who confessed to the crime and mentioned the names of other accused persons. The 1st accused along with the other named accused persons were arraigned and tried on the aforementioned two count charge. They were each found guilty, convicted and sentenced to death on the two count charge. Aggrieved, the 1st Accused person Okunade Kolawole has appealed to the Court of Appeal against his conviction and sentence by his Notice of Appeal dated the 30th December 2009. By leave of this Court granted on the 29th September 2010, the Appellant was allowed to amend the Notice of Appeal. It was also ordered that the Amended Notice of Appeal dated and filed on the 23rd June 2010 be deemed as properly filed and served on the Respondent on the 29th September 2010.

The said Amended Notice of Appeal which consists of four (4) Grounds of Appeal is reproduced hereunder shorn of particulars –

GROUND 1 – The decision of the High Court is unreasonable and cannot be supported having regard to the evidence.

GROUND 2 – The learned trial Judge erred in law in admitting Exhibits C, E and F (alleged confessional statements of the Appellant) in evidence and or attaching any or much weight to the said Exhibits C, E and F and consequently convicting the Appellant based on the said Exhibits C, E and F.

GROUND 3 – The learned trial Judge erred in law by finding the Appellant guilty of the offence of conspiracy to commit armed robbery.

GROUND 4 – The learned trial Judge erred in law in finding the Appellant guilty of armed robbery.

From these four Grounds of Appeal in the Amended Notice of Appeal the Appellant has distilled the following two issues –

  1. Whether the trial court was right in admitting Exhibits C, E and F (alleged confessional statements of the Appellant) in evidence and or attaching any or much weight to the said Exhibits C, E and F and convicting the Appellant based on the said Exhibits C, E and F.
  2. Whether the Respondent proved the offences of Conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

These distilled issues are contained in the Appellant’s Brief of Argument dated 28th October 2010, filed same day but deemed properly filed and served on the Respondent on the 20th January 2011. This followed the grant by this Court on the day of an application on Notice brought pursuant to Order 7 Rule 10(1) of the then Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court to extend time for the Appellant to file his Brief of Argument out of time and to deem the said Brief of Argument which had already been filed and served on the Respondent as properly so filed and served.

The Respondent (the State) for its part distilled the following two issues similar to those formulated by the Appellant for the determination of the Court of Appeal viz –

  1. Whether the trial court was right in admitting Exhibits C, E and F (the confessional statements of the Appellant) in evidence and attaching evidential weight to it and using same in convicting the Appellant.
  2. Whether the Respondent has proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

These formulated issues are contained in the Respondent’s Brief of Argument dated the 14th May 2011, filed on the 20th June 2011 and deemed properly filed and served on the Appellant on the 21st June , 2011 following the grant on that day of an application to extend time for the Respondent to file and serve its Brief of Argument on the Appellant and to deem the Respondent’s Brief of Argument earlier filed and served on the Appellant as properly filed and served.

Both issues as formulated are similar even though slightly differently couched. It would appear to me that Issue No. 1 as couched by both parties can conveniently be subsumed in issue No. 2 and dealt with together. That done the only issue for determination would be whether the Respondent has proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt.

Conspiracy to commit Armed Robbery and Armed Robbery though intricately interwoven in most instances are in essence separate offences and Courts are enjoined to treat the offence of Armed Robbery first.

There are three ingredients that are essential in proof of the offence of armed robbery. These are –

(a) that there was a robbery or series of robberies;

(b) that the robberies were armed robberies;

(c) that the accused persons were or some of the people who took part in the robberies.

There is quite an array of legal authorities on this subject matter. See BOZIN V. STATE (1985) 2 NWLR (PART 8) 465; OKOSI V. ATT. GEN. OF BENDEL STATE (1989) 1 NWLR (PART 100) 642; ALABI V. STATE (1993) 7 NWLR (Part 307) 511.

It is necessary to go into a bit more detail on these ingredients that constitute the offence of armed robbery. Under the Robbery and Firearms (Special Provisions) Act Cap. 11, Laws of the Federation of Nigeria 2004, “Robbery” means stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”

“stealing” means to take or convert to one’s use or to the use of any other person anything other than immovable properly, 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 any right arising from or dependent upon holding, possession of the thing in question whether by the person entitled to such property 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 taking or conversion; converts it although he may intend afterwards to repay the amount to the owner.

“Arms” is made to connote any Offensive weapon,”

The term “offensive weapon” is made to connote “FIREARMS” and “NON FIREARMS”.

“Firearms” under the Act includes any canon, gun, rifle, carbine, machine gun, cap gun, flint-lock gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces.

“Other offensive weapon” other than firearms under the Robbery and Firearms Act are made to refer to “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 it includes an air gun, air pistol, bow and arrow, spear, cutlass, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon”. A broken bottle must be taken as an object adapted for use for causing injury to the person or intended by the person having it for such use and therefore falls into the category of offensive weapon “under the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.

The offence of Armed Robbery being criminal in nature, proof is beyond reasonable doubt, and the burden of such proof rests on the prosecution and never shifts. To this end section 138 of the Evidence Act provides as follows:-

(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person had been guilty of a crime or wrongful act is subject to section 141 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.

In NWOSU V. STATE (1998) 1 NWLR (PART 562) 433 at 444 it was held that –

“In all criminal trials the burden of proof is always on the prosecution in proving beyond reasonable doubt the guilt of the accused. The burden never changes”.

See also AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 686 at 704; (2000) 77 LRCN 820; MORKA v. STATE (1998) 2 NWLR (PART 537) 294 at 307; CHIA V. STATE (1996) 6 NWLR (PART 455) 465; ONUBOGU v. STATE (1974) 9 S.C. 1; (1974) 1 ALL NLR (PART 11) 5; (1974) 1 ACLR 6; OWE V. QUEEN (1961) 2 SCNLR 354; HASSAN V. STATE (2001) 6 NWLR (PART 709) 286; NWEKE v, STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588; TANKO v. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 1114) 597 at 536.

It must be made abundantly clear that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. Proof beyond reasonable doubt simply means that once the prosecution has adduced sufficient evidence which shows a connection between the act of the accused complained of and the offence charged which evidence has not been discredited by the defence, proof beyond reasonable doubt shall have been established. See AGBO v. STATE (2006) 6 NWLR (PART 977) 545. This burden on the shoulders of the prosecution to prove its case beyond reasonable doubt is not made easier by the fact that in our criminal justice system an accused person is presumed innocent unless and until proved guilty by a court of competent jurisdiction. See OMOREGIE v. STATE (2009) 18 NWLR (PART 1119) 464.

The purport of this is that an accused person can keep quiet and say nothing and allow the prosecution to sink in its own cauldron especially when the case for the prosecution is weak. Nnaemeka-Agu (JSC) put it quite succinctly in KIM V. STATE (1992) a NWLR (PART 133) 17; (1992) 4 SCNJ 81 as follows –

“The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused”. See also WOOLMINGTON V. DPP (1935) AC 462.

As earlier stated it is intended in this write-up for the offence of armed robbery to be dealt with first before considering the offence of conspiracy to commit armed robbery. The question is whether there was ever an armed robbery as put up by the prosecution and if so whether the Appellant was part of it? Reference has been made and lots of emphasis placed on Exhibits “C”, “E” and “F” which are alleged confessional statements made by the Appellant that he committed the crime. The Appellant submitted in his Brief of Argument that these statements were not voluntarily made. Exhibit “C” was admitted after a trial within trial by the learned trial Judge as being voluntarily made by the Appellant while the Appellant is contending that he did not deem it useful to raise further objections to Exhibits “E” and “F” which were also not voluntarily made and which the Appellant denied making voluntarily in his evidence in court. The Appellant therefore submitted that the learned trial Judge ought not to have placed any probative value on them. What is certainly not in doubt for now is that the Appellant raised no objection to the admissibility of Exhibits “E” and “F”. Admissibility was objected to Exhibit “C” on the ground that it was not voluntarily made by the Appellant. It is at this stage that one should concern oneself with what to make out of Exhibit “C” which the Appellant said was not voluntarily made by him. The court went into the conduct of a trial within trial after which Exhibit “C” was admitted as having been voluntarily made. The said Exhibit “C” reads as follows –

“I am the person who organized the attacked because of the way Niyi Oshiyemi the Managing Director usually treat me in the place of work that is why I called my brother who live in Lagos one Adewole to bring his motorcycle and one Segun who live at Ogbere and plan to attack him but only to beat him up whether he will change but when we cross him on the road my people whom we went together says we should carry the money inside the car this is why we carry the money and the total money we carry was N250,125 and even the label of the total money was on the money it’s the other two boys that beat him and immediately I call the boys to order and we all left the scene with the total. Actually on the day we hold a bottle and is mineral bottle but we didn’t hit him with the bottle at all. The time then is around 09:20 p.m, in the night but the money I collected it and is in our house at Ijebu Ife, Adewole I knows him long time ago and since I knows him I have never heard of any bad past record on him and why I explain to him is not whether Adewole has being doing so but just to put fair on the mind of the Managing Director one Niyi Oshiyomi. The motorcycle we used belong to the said Adewole and is Jincheng motorcycle the Reg/No. I don’t known and pertaining to Segun I knows him at Ogbere but where he reside the house I don’t known and since the day of the incident he told me that he will not stay around at all and presently I don’t known where he is. The Jeans shirt recovered in an uncompleted building inside the uncompleted building, I have never conduct myself in a manner than can cause breach of Peace. Okunade Kolawole.”

It is this statement that the learned trial Judge admitted as Exhibit “C” as having been voluntarily made by the Appellant after a trial within trial. If the learned trial Judge was right in its finding, this sole confessional statement – Exhibit “C” would be sufficient to convict the Appellant’ See NWACHUKWU V. STATE (2008) 4 WRN 1; (2007) 12 SCM (Pt.2) 447 & 455; IKEMSON V. STATE (1989) 3 NWLR (PART 110) 455 at 468 – 469; ADEBAYO V. ATT. GEN. OF OGUN STATE (2008) 5 SCM page 1 at 15; AKPA V. STATE (2008) 8 SCM page 68 at page 70. Indeed the Supreme Court in ADEBAYO’S case cited above had this to say –

“A trial Judge can admit confessional statements if made voluntarily and without inducement, threat or promise from a person in authority.”

That would appear to be going round in a circle and the paramount question is bound to crop up again, “Was the statement of the Appellant – Exhibit “C” voluntarily made?” This question is all the more necessary, even vital because in the Nigerian Criminal Justice System as in other common law jurisdictions, an accused person is presumed innocent until and unless the contrary is proved, the legal aphorism being that it is better for ten guilty men to be set free than for one innocent man to be sent to jail for an offence that he may not have committed. It is in line with this thinking that the courts have overtime fashioned out other tests to ascertain the voluntariness of an accused person’s alleged confessional statement. These tests are –

  1. Is there anything outside the confessional statement to show that it is true?
  2. Is it corroborated?
  3. Are the facts stated in the confessional statement true as far as can be tested?
  4. Was the accused, one who had the opportunity of committing the offence?
  5. Is the confession possible?
  6. Is it consistent with other facts which have been ascertained and Proved?

There is a long line of judicial authorities on this subject matter. Some of these authorities are listed below:-

OJEGELE V. STATE (1988) 1 NWLR (PART 71) 414; NSOFOR V. STATE (2005) 4 WRN 29; KANU V. R.14 WACA 30; AKPA V. STATE (2007) 2 NWLR (PART 1019) 500; NWACHUKWU V. STATE (2007) 12 SGM 2 at 447.

With these as parameters, could Exhibit “C” made by the Appellant have been voluntarily made? This is no Russian Roulette. In order to answer this question satisfactorily, the need does and must arise to subject the alleged confessional statement to other bits and pieces of evidence adduced not only by the prosecution witnesses but as sometimes is the case, to the evidence of other co-accused persons and other evidence of the accused himself to ascertain how they all fit in, In his evidence at the trial within trial at page 48 of the records and under cross-examination, the Appellant said that PC Solomon gave him a plain sheet of paper with instructions to rewrite what had been written by him PC Solomon, He refused to do so until he was promised that he would be granted bail. It was then he wrote the names of the other accused persons (2nd & 3rd accused in the court below) in the plain sheet of paper. He admitted that the names of the 2nd and 3rd accused persons were not contained in the statement which PC Solomon asked him to copy unto the plain sheet of paper. How could the Appellant know the names of the 2nd and 3rd accused persons which were not known to PC Solomon if the Appellant was not part and parcel of the gang to which the 2nd & 3rd accused persons belong. At page 53 of the Record of Appeal, the learned trial Judge in summing up the evidence of the Appellant during the course of the trial within trial stated thus –

“I have looked at the statement sought to be tendered and it contains the following information, “Adewale lives in Lagos and one Segun Osho lives in Ogbere; the amount of N250,130; “it was a Junche motorcycle which was used for the robbery and a jeans shirt recovered in an uncompleted building belongs to 1st accused”

and came to this conclusion,

“These pieces of information which PW1 could not have known not being within his personal knowledge, which to my mind are information that can only be known to the 1st accused personally.”

The learned trial Judge in my estimation was absolutely right. A better evaluation could not have been made. These same bib and pieces of information were supplied by the Appellant in his evidence-in-chief at page 48 of the Record of Appeal where the Appellant admitted that when he was asked who his friends were, he refused to supply their names until he was promised a grant of bail by PC Solomon when he then wrote the names of the 2nd & 3rd accused persons on the plain sheet of paper as having gone to rob with him, The names of the 2nd & 3rd accused persons were not contained in the statement of PC Solomon which PC Solomon asked him to copy unto the plain sheet of paper, Appellant admitted under cross-examination at page 48 of the Record of Appeal. Appellant admitted what he had said in his evidence-in-chief that he mentioned the names of the 2nd & 3rd accused persons at Atan Police Station. No. 433129 PC Babalola Solomon said it was this confessional statement (later admitted as Exhibit “C’) that led to the arrest of the 2nd & 3rd accused persons who stood trial with the Appellant as 1st accused in the robbery trial in the court below, Without prejudice to the 2nd & 3rd accused persons if and when they appeal their sentences having been charged together and convicted along with the Appellant, I have examined Exhibits “G” and “H” which were the alleged confessional statements made by them and which they also denied making voluntarily again prompting the learned trial Judge to conduct a trial within trial, the ruling to which the trial Judge said the statements – Exhibits “G” and “H” were voluntarily made.

Suffice it to say that Exhibits “G” and “H” are corroborative of Exhibit “C” made by the Appellant in his confessional statement. Exhibits “G” and “H” tell a story of how the Appellant feeling offended about the ill treatment meted out to him by PW1 his former boss had secured the help of the 2nd & 3rd accused persons to beat up PW1; how they chased and overtook PW1’s Mercedes Benz Car on their own motorcycle and beat him up; how they had mineral bottles although the 3rd accused person had said that the Appellant did not have with him any bottle. In the statement of one of the accused persons, the Appellant even said that only PW1 should be beaten up and not the person accompanying PW1 in his car. How do these statements fit into the six tests enunciated earlier on in this write-up for determining whether the statement of the Appellant (Exhibit “C”) was made voluntarily? One thing is certain. There appears to be no inconsistency in all the statements. They present a harmonious and consistent story of what happened on the day of the robbery incident. They tally with the evidence of PW1 on what transpired on the day of the incident. The Benz car, the sum of N250,000.00; that it was a motorcycle that the Appellant and the others rode in the night of the incident; the issue of having in their possession mineral bottles are constant in all the confessional statements. Outside the confessional statement of the Appellant Exhibit “C” are the confessional statements Exhibits “G” and “H” of the other accused charged and convicted along with the Appellant. Exhibits “G” and “H” are corroborative of Exhibit “C” in material particulars as to time of the incident, the car driven by PW1; that at least two of the accused persons were armed with mineral bottles; that at least the sum of N250,000,00 was in the possession of PW1 at the time of the incident which was collected by the Appellant; that the Appellant and two others intercepted PW1’s car on a motorcycle ridden by the Appellant and the others; that Appellant was angered by the ill treatment meted out to him by PW1 his former boss. That the statements are true is not in doubt be cause they present a harmonious, consistent picture of the incident and are corroborative of one another. That the Appellant’s confession is possible cannot be doubted. Appellant had for example been assured by PC Solomon that if he gave the names of those who participated in the robbery with him, he would be granted bail. It was the release of the names of the 2nd and 3rd accused persons by the Appellant that led to their arrest and their corroborative statements that led to the conviction of the Appellant, Appellant may well have been under an illusion as most criminologists would attest to that he could get a lighter sentence if he opened up. The Appellant had the opportunity of committing the offence having been an employee of PW1; knew what time he closed shop for the day and the fact that he kept the proceeds of the day’s sales with him in his car while driving back home from his Filling Station. Appellant’s confession is possible as stated earlier because he may have thought he could be let off or get a lighter sentence if he confessed to his crime. The Appellant’s confession is consistent with the evidence of the prosecution which was not destroyed by cross-examination and the confessional statements of the other accused persons. Thus the six tests for determining whether Exhibit “C” was voluntarily made by the Appellant would appear to have been satisfied by the prosecution. It must be stated at this juncture and done with that the fact that one of the statements portrayed the Appellant as not having been armed with a bottle does not absolve him from guilt of the offence of armed robbery. What would in a hypothetical setting be the fate of an unarmed person who only acted as a lookout while an armed robbery operation is being carried out? Such a person is a principal offender and could be charged with the principal offence of armed robbery. To this end section 7 of the Criminal Code Cap C3B Laws of the Federation 2004 provides as follows –

“when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it –

(a) Every person who actually does the act or makes the omission which constitutes the offence.

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the act.

(c) Every person who aids another in committing the offence.

(d) Any person who counsels any other person to commit the offence.” (Underlining mine for emphasis),

That the Appellant is the person who procured other persons to carry out the incident on the night in question is not in doubt from his confessional statement and the confessional statements of the other accused persons with him. The Appellant was charged, tried, convicted and sentenced to death for the offence of armed robbery. As earlier noted, a confessional statement made by an accused if proved to have been made voluntarily, is, without more enough for the prosecution to ensure conviction of the accused.Exhibit “C” having been proved to have been voluntarily made by the Appellant and being disastrously incriminating of the Appellant is enough to secure a conviction for the offence of armed robbery. When the said confessional statement is subjected to the six tests for determining the voluntariness of the confessional statement, one is left in no doubt that the prosecution has proved the case of armed robbery against the Appellant beyond reasonable doubt. The admission by the Appellant of the other confessional statements made by him i.e. Exhibits “E” and “F” without objection has further enhanced proof that the Appellant in concert with others carried out an attack of armed robbery on PW1 on the day of the incident. Additionally is the fact that the Appellant was found with missing money soon after the crime. By the doctrine of recent possession, if a person is found in possession of property recently reported stolen the presumption is that he is either the thief or knew the property to be stolen, See OSENI V. STATE (1984) 11 SC 44. I find the charge of Armed Robbery against the Appellant proved by the prosecution beyond reasonable doubt and I find no reason to upset the conviction and sentence of the trial Judge who I commend for the painstaking job done.

On the issue of conspiracy, I had earlier noted that it is a separate and distinct offence from the offence of armed robbery although in most cases both offences are intricately woven together. Conspiracy simply put is the meeting of the minds of the conspirators to perpetrate an unlawful act or a lawful act by unlawful means: Conviction is usually grounded on circumstantial evidence and a trial court may infer conspiracy from facts through which a common purpose is achieved” There is a plethora of case law on this subject matter. See generally the following cases- R. V. ASPINALL (1876) 2 QBD 48; WAZIRI V. STATE (1997) 3 NWLR (PART 496) 689; NWANKWOALA V. STATE (2006) ALL FWLR (PART 339) 801; ODENEYE V. STATE (2001) 1 SC. 1; PARTRICK NJOVENS V. STATE (1979) 5 SC 17; UPAHAR V. STATE (2003) 6 NWLR (PART 816) 230. When the confessional statements in Exhibits “C”, “E”, “F”, “G” and “H” are comparatively evaluated one is left in no doubt that the Appellant conspired with other persons to perpetrate the offence of armed robbery against PW1 on the day of the incident.

I consider it necessary at this stage to take on the defence of alibi raised by the Appellant. “Alibi” simply means that the accused was not at the scene of crime when the criminal act was being carried out.

When confessional statements are said to be made by accused persons who maintain that such confessional statements were not voluntary, the Court carries out a mini trial in the form of a trial within trial to determine whether the statement was voluntarily made or not. In addition the alleged confessional statement is subjected to the six tests earlier enunciated. This procedure, cumbersome as it is, is designed to ensure that an accused is not made to admit a statement that he ordinarily could’ not have made if some pressure or threat of harm or actual harm were not meted out to him.In the case of an alibi it is settled on the authorities that an alibi once raised by the accused should be investigated. This is a notorious legal requirement to be carried out by the prosecution. As regards the offences of armed robbery and conspiracy in the present appeal, the contention of the Appellant is that the defence of alibi raised by him was not investigated by the prosecution. It is just as well settled on the authorities that the prosecution does not have to investigate every alibi and that failure to investigate an alibi does not necessarily translate into an admission by the prosecution that the accused was not actually at the scene of crime during the perpetration or execution of the crime. Where the accused person’s defence of alibi is crushed by the sheer weight of the evidence proffered by the prosecution the accused can be rightly convicted. Here again there is a plethora of case law on this subject matter. See the following cases – MICHAEL HAUSA V. STATE (1994) 6 NWLR (PART 350) 281; OLAIYA V. STATE (2010) ALL FWLR 1; NTAM & ANOR V. STATE (1968) NMLR 86 at 87.In the present case now being considered on appeal, although there were no direct eye witnesses, the confessional statements of the 1st & 2nd accused persons Exhibits “G” and “H” were strongly corroborative of the confessional statements of the Appellant -‘ Exhibits “C” which is consistent with the facts of the case as presented by the prosecution witnesses. Additionally is the fact that the Appellant raised no objection to the admission of Exhibits “E” and “F”. Together these confessional statements and pieces of evidence by the prosecution are weighty enough to secure the conviction of the Appellant even without the defence of alibi being investigated by the prosecution.

On the whole, I am in complete agreement with the learned trial Judge that the offences of conspiracy to commit armed robbery and armed robbery have been proved by the prosecution beyond reasonable doubt and I find no reasons to disturb these findings. The Appeal therefore fails and is dismissed and the judgment of Ogunsanya J. of the Ijebu Ode High Court delivered on the 23rd December 2009 is hereby affirmed by me.

 
MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother ALAGOA, (JCA) OFR. I entirely agree with the reasoning and conclusion arrived thereat. The appeal lack merit. I also dismiss same and affirm the decision of Ogunsanya J. of the High Court of Ijebu-Ode delivered on the 23rd December, 2009.

 
FASANMI, J.C.A.: I had a preview of the judgment just delivered by my learned brother S. S. Alagoa (OFR) J.C.A. He has admirably and satisfactorily dealt with all the issues that have arisen in the appeal.
I entirely agree with the reasoning and conclusion reached that the appeal has no merit and it ought to be dismissed. I dismiss the appeal. I abide with the consequential orders made in the lead Judgment.

Appearances

Ikenna Okoli Esq…………. For Appellant

J. K. Omotosho Esq., Deputy Director of Public Prosecution, Ogun State Ministry of Justice……………. For Respondent