MOHAMMED v THE STATE

MOHAMMED v THE STATE


IN THE COURT OF APPEAL
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA

ON TUESDAY, 30TH JUNE, 2015


Appeal No: CA/K/336/C/2013
CITATION:

Before Their Lordships:

ISAIAH OLUFEMI AKEJU, JCA

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA

AMINA AUDI WAMBAI, JCA


BETWEEN

ADAMU MOHAMMED

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS

A. CRIMINAL LAW
1. Offence of Armed Robbery – Elements that constitute the offence of armed robbery

Ingredients that must exist to prove the offence of armed robbery

“The essential ingredients of armed robbery have been listed in a plethora of cases to include:

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

(b) That the robbery or robberies was an armed robbery; and

(c) That the accused person took part in the robbery. SOWEMIMO v. STATE (20 2) 2 NWLR (PT.1284) 372; JOHN v STATE (2011) 18 NWLR (PT 1278) 353; STATE v SALAWU (2011) 18 NWLR (PT 2279) 580; BELLO V. STATE (2007) ALL FWLR (PT.396) 702; MOLANLE V. STATE (2003) 7 NW R (PT.925) 431; and ISIBOR V. STATE (2003) 3 NWLR (PT.754) 250.”Per AKEJU, JCA read in context

2. Offence of Armed Robbery – Definition of armed robbery

Meaning of armed robbery

“Armed Robbery” from the provision of Section 2 of the Robbery and Firearms (Special Provisions) Act simply means to rob while in possession of any firearm or any offensive weapon or being in company with any person so armed. What then is “Robbery” and what constitutes “arms?” As regards the word “Arms” there is a clear subdivision of that term under Section 11 of the Act into “firearms” and “Offensive Weapons.” “Firearms” include the following – cannon, gun, rifle, carbine, machine gun, cap gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearms whether whole or detached pieces”, while “offensive weapons” refer to “any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.” Per AKEJU, JCA read in context

3. Offence of Armed Robbery –

Whether a person charged with the offence of armed robbery must be armed

“In a charge of Armed Robbery, what is of utmost importance is to show that the Appellant was in the company of the robbers who were armed. In the case of OKPULOR V. THE STATE (1990) 7 NWLR (PT.164) 581 at 590, BELGORE JSC (as he then was) held:

“Once it was established by the prosecution that the appellant was among the robbers and they were armed with offensive weapons, e.g. Firearms, by common design, the appellant is guilty of armed robbery…In law it matters not that the appellant himself did not carry a weapon.” Per AKEJU, JCA read in context

4. Guilt of an Accused Person – Ways by which the guilt of an accused person may be established

How to establish/prove the guilt of an accused person

“The law is that the guilt of an accused person may be established by the following ways or at least one of them i.e.
1. By evidence of eye witness account of the incident

2. By circumstantial evidence and (3) by confession of the accused person. See Igabele V. State (2006) 6 NWLR (pt.975) 100; Mbang V. state (2012) Vol. 6-7 MJSC (pt.IV) 119.”Per AKEJU, JCA read in context

5. Plea of Alibi – Duty of the parties where the defence of alibi is raised

Duty of the prosecution and accused person where the defence of alibi is raised

“Alibi, a latin word simply means elsewhere and an accused person raising the defence of alibi is saying that he was somewhere else and could not possibly have been at the locus criminis at the time the offence was committed. The respective duties of the prosecution and the accused person where alibi has been raised are that the accused person has the duty to raise the defence promptly and properly and to furnish the necessary information about his whereabouts while the prosecution has a duly to investigate an alibi and rebut same as part of its burden to prove the case beyond reasonable doubt. The accused person therefore has the onus to establish the plea of alibi raised by him on the balance of probabilities and failure to investigate the alibi does not automatically result in failure of the prosecution’s case. SEE SAMUEL ATTAH V. STATE (2010) VOL.3 (PT.IV) M.J.S.C PAGE 139; AFOLALU V. STATE (2010) VOL. 6 – 7 MJSC 187. SHEHU V. STATE (2010) VOL. 3 (PT. II) MJSC 74.”Per AKEJU, JCA read in context

B. EVIDENCE
6. Burden of Proof/Standard of Proof – Burden and standard of proof in a criminal trial

General principles of the burden and standard of proof in a criminal trial

“It is now well settled that the burden of proof in criminal cases rest on the prosecution that alleged the commission of the offence and this burden does not shift save in recognized instances. The provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) that guarantees to every person charged with a criminal offence the right to be presumed innocent until proved guilty and Section 135 (1) of the Evidence Act, 2011 that where the commission of a crime by a party to any proceeding is directly in issue in the proceeding, civil or criminal it must be proved beyond reasonable doubt have by their combined effect placed the burden of proving the guilt of an accused person on the prosecution by proving all the ingredients of the alleged crime beyond reasonable doubt. See YONGO V C.O.P (1992) 4 SCNJ 113; OGUNDIYAN V THE STATE (1991) 3 NWLR (PT 181)19; BABUGA V THE STATE (1996) 7 NWLR (PT 406) 274; R V LAWRENCE (1932)11, NLR 6; AFOLALU V STATE (2010)16 NWLR (PT 1220) 584.”Per AKEJU, JCA read in context

7. Confessional Statement – Definition of a confession under the Evidence Act

Definition of confession as provided for in the Evidence Act

“On what amounts to a confession, Section 28 of the Evidence Act, 2011 provides that;

“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”.

In the Case of Jimoh V. State (2014) Vol. 3 MJSC 1 at 44 it was stated by Ariwoola JSC that “It is the law that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence c h a r g e d ; t h e s t a t e m e n t b e c o m e s confessional”. See Patrick Ikemson & Ors V. The State (1989)1 CLRN 1, (1989) 3 NWLR (Pt.110) 445.”Per AKEJU, JCA read in context

8. Confessional Statement – Requirements to be satisfied before a confession can be used in convicting an accused person

Conditions to be satisfied before a confession can be used in convicting an accused person

“Where therefore the confession is free, voluntary direct positive, duly made and satisfactorily proved, it is sufficient on its own to warrant conviction in as much as the Court is satisfied of the truth thereof. SEE AZABADA V. THE STATE (2014) VOL 6 -7 M1SC (PT. 1) 149. AKPAN V. STATE (2008) 8 SCNJ 68; NWAEBOYI V. STATE (1994) 5 NWLR (PT. 342) 138. It is however desirable that some other evidence consistent with the confession of the accused person is produced especially where the accused person has retracted the statement. SEE ONOCHIE V. THE REPUBLIC (1971) 1 ALL NLR 151.”Per AKEJU, JCA read in context

9. Proof Beyond Reasonable Doubt – Meaning of proof beyond reasonable doubt

Whether proof beyond reasonable doubt means proof beyond all shadow of doubt

“It must be remembered in criminal trials that the burden of proving the guilt of the accused person beyond reasonable doubt placed on the prosecution does not amount or translate to proving beyond every shadow of doubt. See BAKARE V THE STATE (1987) 3 SCNJ 9, AIGBADION V STATE (2000) 4 SC (PT.1) I, IGABELE V STATE (2006) 6 NWLR (PT.975)100, KIM V STATE (1992) 4 NWLR (233) 17, the burden on the prosecution is to establish the ingredients of the alleged offence beyond reasonable doubt.” Per AKEJU, JCA read in context

10. Contradiction in Evidence – Instances in which a contradiction will affect the decision of a trial court

When will a contradiction affect the decision of a trial Court

“The law is firmly settled that it is not every contradiction that will result in the judgment of the trial Court being set aside. Such a contradiction must be of substance or relate to the material ingredients of the offence, and not mere discrepancies or inconsistency in evidence. See EJEKA V STATE (2003)7 NWLR (PT.819) 408, NDIDI V STATE (2005) 17 NWLR (PT 953) 17, DAGGAYA v STATE (2006)7 NWLR (PT 980) 637.”Per AKEJU, JCA read in context


LEAD JUDGMENT DELIVERED BY AKEJU, JCA


At the Kaduna State High Court of Justice holding at Kaduna before Hon. Justice G.I KURADA the appellant was in charge No KDH/KAD/5C/200 dated 15th January, 2007, charged with four (4) other accused persons on (2) two counts of the offence of armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act. 1990 (as amended).

THE CHARGE

“COUNT ONE

That YOU NASIRU IDRIS, ADAMU MOHAMMED, AMINU ADAMU, ABDULLAHI USMAN and SANI ADAMU on or about 14th day of August, 2006 at about 2.40am, while armed with sticks, iron rods, machetes and other dangerous weapons attacked Auwal Zakari Alhassan, Salisu Zakari and members of their family in their house at No.25 Kwoi Street, Zango, Tudun Wada, Kaduna and robbed Auwal Zakari Alhassan of the sum of N 60,000.00 and Sagem Mobile phone handset and by so doing you committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act, 1990 as amended.

COUNT TWO

That you NASIRU IDRIS, ADAMU MOHAMMED, AMINU ADAMU, ABDULLAHI USMAN and SANI ADAMU on or about 14th day of August, 2006 at about 2.40am while armed with sticks, iron rods, machetes and other dangerous weapons attacked Auwal Takari Alhassan, Salisu Zakari and members of their family in their house at No. 25 Kwoi Street, Zango, Tudun Wada, Kaduna and robbed Salisu Zakari of the sum of N5,000.00 and one Nokia Mobile phone handset, and by so doing you committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act, 1990 as amended.”

Upon plea of not guilty by the appellant, the prosecution called Three (3) witnesses and tendered two (2) Exhibits 2 and 2A while the appellant testified for himself in his defence but tendered no exhibit.

At the conclusion of the trial, learned appellant’s counsel made a no case submission, the High Court of Kaduna State (trial Court) delivered its ruling on the 23rd October, 2009 dismissing the no case submission holding that the prosecution has made out a prima facie case against the accused. Thereafter the appellant testified for himself as DW2 and at the conclusion of the defence learned counsel for the accused addressed the Court and judgment was delivered on the 29th June, 2010 discharging and acquitting the appellant of count two of the charge and convicting him of count one and sentenced him to death by hanging after the plea of allocutus.

Dissatisfied with decision of the trial Court, the appellant filed a Notice of Appeal with four grounds of appeal after seeking and obtaining the leave of this Court to file out of time. The appellant subsequently filed the Appellant’s Brief of Argument on the 16th July, 2013 which was settled by Okechukwu Nwaeze Esq, while the Respondent’s Brief of Argument settled by I.M. Samson Esq was filed on the 4th July, 2014. Briefs were adopted and relief upon by the respective learned counsel at the hearing of the Appeal.

What the appellant’s counsel placed before this court as issues for determination in the appeal are.

1 Whether the prosecution proved its case beyond reasonable doubt, connecting the commission of the crime with the Appellant, to warrant the Learned Trial Judge convicting and sentencing the Appellant to death by hanging.

2 Whether from the totality of the evidence before the trial Court, the Learned Trial Judge was right to have relied on the contradictory evidence of PW1 and the appellant’s purported confessional statement to convict the Appellant.

From the four Grounds of Appeal the respondent has distilled one issue from each ground of appeal as follows:

1. Whether the trial judge is obliged to allow an investigation by the police of the defence of alibi raised by the appellant during his testimony as DW2 and whether failure by the trial judge to order such an investigation causes a miscarriage of justice warranting the setting aside of the appellant’s conviction? (Ground 1).

2. Whether there was any contradiction in the testimony of PW1 and if there was such contradiction, was it material enough to cast reasonable doubt in the prosecution’s case? (Ground 2).

3 Whether there was any external evidence corroborating the confessional statement of the appellant for the trial judge to base the conviction of the appellant solely on it? (Ground 3).

4 Whether there was sufficient evidence linking the appellant with the crime to justify his conviction?

It is noted that the two issues by the appellant cover the respondents four issues. I adopt the appellant’s issues for determination for the consideration and determination of this appeal.

ARGUMENT ON ISSUES ONE

Whether the prosecution proved its case beyond reasonable doubt, connecting the commission of the crime with the Appellant, to warrant the Learned Trial Judge convicting and sentencing the Appellant to death by hanging.

Learned Counsel submitted that it is trite law that the elements which the prosecution must prove before it can succeed in a charge of armed robbery are:

1. That there was a robbery:

2. That the accused person committed that robbery: and

3. That at or immediately before or after the robbery, the accused person wounded or used personal violence to any person and referred the Court to the cases of JOHN VS. STATE (2011) 18 NWLR (PT 1278) 353 SC. STATE VS SALAWU (2011) 18 NWLR (PT 1279) 580 SC. These ingredients, counsel contended, must be established by the prosecution to ground a conviction. The prosecution must prove every element that constitutes the totality of the offence, failure to prove an element; the prosecution has failed to prove beyond reasonable doubt.

Counsel referred the Court to page 9 of the record of appeal, for the examination in chief of the PW1 at the trial thus:-

“On 14/8/2006, at about 2.00-3.00am we heard the noise of a door to our father’s room being broken or forced open. Myself and my senior brother woke up. My senior brother is Salisu Zakari Alhassan. I asked three times “who is that?” but there was no answer. My senior brother instructed me to open the door between our room and our father’s room.

When I opened the door, I saw some people I did not know, holding weapons in their hands, such as sticks, and iron rods.” (SIC)

Learned counsel argued that from the evidence of PW1 above, it is not in dispute that there was a robbery, but the question here is whether the appellant was among those that robbed PW1 on the said 14/08/2006, which question the prosecution at the trial failed to answer, he also submitted that PW1 in his evidence as stated above said he saw some people he did not know. In order to ascertain the identity of the persons that committed the robbery, an identification parade ought to be carried out by the police. Identification parade is very vital in cases of armed robbery as it assists in getting the real culprit of the crime.

Learned counsel contended that it is the duty of the prosecution where an accused person was not arrested at the scene of a crime, to conduct proper identification as it is aimed at ensuring that a witness can identify the criminal who committed the crime. The prosecution even has a greater duty to prove that the appellant committed the crime as the said robbery is alleged to have been committed at dark night when visibility was blurred i.e. 2.00-3.00AM, an identification parade is necessary in this case given the circumstances thereof, and referred the Court to the Supreme Court cases of OSUAGWU V. STATE (2013) 5 NWLR (PT 1347) 360 @ 381-382 ALABI V. STATE (1993) 7 NWLR (PART 307) 511; and NWATURUOCHA v. STATE (2011) 6 N.W.L.R. (PT 1242) 170 SC.

The learned counsel further submitted that on the issue of identification, PW3 one CPL Mohammed Hamaljude at page 14 of the record of appeal testified during examination in chief as follows:-

“The complainant came together with his neighbor, Idris, so we asked Idris if he could identify Bature to us, When he identified Bature we discovered he was a person known to us”

According to the learned counsel Bature (Abdullahi Usman) was the 4th accused person who was arraigned with the appellant at the lower Court. PW3 in his evidence earlier told the trial Court that the said Idris heard when the bandits were asking one Bature of the house of one Hon. Shusha AMullahi. Counsel argued that, Idris only heard but never saw the faces of the bandits. The question here to ask is, how the said Idris was able to identify Bature (the 4th accused person) at the trial Court when he never saw the faces of the bandits that robbed that night?

It was submitted that the quality of evidence at the end of the prosecution’s case on the issue of identity is poor that the trial Court ought not to have relied on it to convict the appellant. PW1 never mentioned the name of the appellant throughout his evidence before the lower Court and referred the Court to the Supreme Court cases of OGUDO V. STATE (2011) 18 NWLR (PT 1278) 1 @ 32; OSUAGWU v. STATE (2013) 5 NWLR (PT.1347) 360 SC;

ADEYEMI v. STATE (2013) 3 NWLR (PART 1340) 78 SC.

It was further contended that all through the case at the trial Court, the prosecution never tendered any weapon or weapons. The prosecution failed to establish the 2nd element as stated in the case of OGUDO V. STATE (SUPRA). Learned counsel argued that the prosecution at the lower Court did not prove its case beyond reasonable doubt having failed to establish the elements of armed robbery under the law in that one of the elements the prosecution must prove in order to succeed in a case of armed robbery is that the robber wounded or used personal violence on the victim.

It was submitted that the prosecution refused to call PW1’s brother, such a vital witness, whose evidence is fundamental to prove the injuries and to determine the identity of the persons who actually committed the crime. This raises the presumption of withholding of evidence under Section 149(d) of the Evidence Act that, had the said witness been called, it will be unfavorable to the prosecution and cited the case of STATE VS. AZEEZ (2008) 14 N.W.L.R (PT 1180) PG 439

Learned Counsel submitted that during the defence, the Appellant as 2nd accused person at the lower Court raised the defence of Alibi. He testified at the trial Court that he was at the State C.I.D on 14/08/06 when the incident took place. The appellant was arrested on 25/07/2006. Counsel referred to pages 20-21 of the record for the evidence of the appellant as DW2 at the lower Court, he added that though it has been decided in a Plethora of cases that the defence of Alibi must be raised at the earliest possible time to enable the prosecution investigate it, when raised during trial, as in this case during defence, the burden of prove still lies on the prosecution. It is not for the accused to establish or prove his defence of alibi. The prosecution is bound to adduce any contrary evidence during cross examination of the accused to rebut or disprove the appellant’s defence of alibi at the trial Court.

Counsel further submitted that once an accused person has a defence, he is obliged to proffer it before the Court. The appellant at the lower Court pleaded the defence of alibi, the primary onus of establishing the guilt of the appellant still rests on the prosecution including the defence of alibi which the secondary burden is on the accused to adduce evidence of where he was at the material time.

Counsel added that when the appellant testified as DW2 before the lower Court, he told the Court that he was with the police at the State C.I.D on 14/8/06 the day the robbery took place. The appellant during cross examination by the prosecuting counsel told the Court he was arrested on 25/7/2006. It is left for the prosecution to rebut the appellant’s alibi during cross examination which they never did.

Counsel submitted that the Court must consider all the defences raised by an accused person in a trial no matter how stupid they may be. The standard of proof required to establish the defence of alibi is one based on the balance of probabilities. The learned trial judge in his judgment delivered on 29/06/10, disbelieved and rejected the Appellant defence of alibi on the grounds that it was a cock and bull story, the defence of alibi can only be rejected or set aside when the prosecution has adduced contrary evidence, and referred the Court to the case of ONAFOWOKAN V. STATE (1987) 3 NWLR (PART 61) 538.

Learned appellant counsel submitted that the appellant successfully defended his defence of alibi at the trial Court and had the police given the appellant the opportunity at the police station, he would have raised his defence of alibi earlier at the police station during investigation. He added that the appellant’s evidence of alibi was corroborated by the evidence of one Aminu Hamza, a police man who testified as PW2, during cross examination at page 12 of the record of appeal when he stated that the appellant was not arrested at the scene of any robbery.

Learned counsel further submitted that the prosecution failed to discredit the appellant’s defence of alibi thereby casting doubt on the mind of the learned trial judge and that the law is clear that where doubt exists, such should be resolved in favour of the accused person citing the case of AZEEZ V. STATE (2005) 8 NWLR (PART 927) PAGE 312

The learned counsel submitted that the appellant was nowhere near the scene of the incident and therefore he could not be expected to have committed the robbery on that fateful day 14/08/2005. He added that for the prosecution to succeed in a case of armed robbery it must of necessity prove the identity of the accused and with credible evidence prove its case beyond reasonable doubt. According to the learned counsel from the entire evidence of the prosecution before the trial Court, there is no form of evidence associating or linking the appellant with the commission of the offence he was convicted for.

He finally submitted on this issue that the prosecution had not proved beyond reasonable doubt its case that the appellant was present and participated in the crime and urged the Court to so hold and resolve issue No. 1 in favour of the Appellant.

In response, the respondent’s learned counsel referred the Court to the case of Agboola v. The State (Supra) at p.701 lines 11- 16 for the essential ingredients of the offence of armed robbery and submitted that the prosecution must prove all three ingredients to succeed and referred the Court to the testimony of PW1 on page 9-10 of the Record of Proceedings. He added that from the testimony of PW1, there was a robbery at the PW1’s residence at No 25 Kwoi Street, Tudun Wada, Kaduna on 14/08/2006 at about 2 to 3am. That the robbers who were armed with sticks, cutlasses and iron rods attacked the PW1 and his brother beat them up and robbed them of the sum of N60, 000 and two GSM handsets, he also submitted that the appellant conceded in Paragraph 4.4 of his appellant’s brief that there was indeed a robbery and that the robbers were armed. However, the appellant contends that the third ingredient was not established because no identification parade was held for PW1 to identify the appellant as one of the robbers that robbed him.

Learned Counsel submitted that the above argument is misconceived and that an identification parade is not necessary for identification in all cases where there was a fleeting encounter with the victim of the crime, if there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence and cited Agboola v, The

State (Supra) at p.702 lines 12-16. He further submitted that in the present case, there was no need for an identification parade because the appellant made a confessional statement (Exhibits 2 and 2A) admitting to the crime. The appellant was therefore linked to the crime though his own confessional statement (Exhibits 2 and 2A) which was proved. There was therefore no need to hold such a parade and cited the cases of Osung v. The State (2012) 6 SCNJ (pt.II) 511 at 533 lines 10-15.

Learned counsel argued that from the foregoing, the prosecution has established the third ingredient of the offence against the appellant, i.e. that the appellant was one of the robbers that robbed PW1 on 14/08/2006, he added on the issue of alibi that when an accused person raises unequivocally the issue of alibi that he was somewhere else other than the scene of the crime which he is charged with and gives some facts and circumstances of his whereabouts, the prosecution is duty bound to investigate the alibi set up to verify its truthfulness or otherwise and referred the Court to the case of Agboola v. The State (2013) 5 SCNJ (Pt. II) 683 at 705 lines 22-28 but for this defence to avail the accused person, he must have raised it at the earliest opportunity in his statement to the police during the investigation, the prosecution only has a duty to investigate the defence if it is raised at the earliest opportunity not during trial therefore the defence cannot avail him.

Learned counsel further submitted that in the present case the appellant made a statement to the police that are Exhibits 2 and 2A, but never raised the defence of alibi until his testimony as DW2 before the trial Court. This defence was purely an afterthought by the appellant and the defence cannot avail him because at that stage the police no longer have the opportunity to investigate the alibi put forward by the appellant and cited the cases of Udoebre V. The State (2001) 6 SCNJ 54i Agboola V. The State (Supra) at 706 lines 5-7, 16-22; Bashaya V. The State (1998) 4 SCNJ 202.

According to the learned counsel it is not sufficient to just raise the defence, for the accused person to take advantage of the defence, he must give a detailed particularization of his whereabouts on the crucial day of the offence which will include not just the specific places where he was but additionally, the people in whose company he was and what if anything transpired at the time and the places. The information must be comprehensive for the police to be able to investigate if they wish to do so and referred the Court to the cases of Udoebre v. The State (Supra) at 66; Bashaya V State (Supra) at 217.

It was further submitted that the appellant in his testimony as DW2 stated that he was arrested on 27/07/2006 at about 9.30pm at BakinRuwa when some people in a car arrested him and took him to a cell and brought him out after two days and asked him to tell them the truth that they suspect that he (appellant) is a thief. He further stated that the men insisted that if he doesn’t tell them the truth he is going to suffer. He stated that they took him back to the cell and after two days took him to the State C.I.D, Kaduna. He stated that on 14/08/2006 he was in the cell at the State C.I.D and had then spent two days there.

It was contended that the appellant did not state if the men who arrested him were policemen and where the men took him to. It was contended that the appellant didn’t give full particulars to substantiate his defence of alibi to show that he was in detention at the time of the robbery, who he was with at the time, neither did he call anyone as a witness in his defence even though he had the opportunity in order to prove that he was in detention at the State C.I.D on 14/08/2006 particularly due to the fact that he only raised the defence during his testimony. He further submitted that the alibi raised by the appellant was vague, the particulars of the alibi even if brought timeously cannot be investigated by the police.

Learned Respondent’s counsel submitted that where the defence of alibi consists of vague accounts which are simply placed before the Court as mere make-beliefs of plea of that defence which is completely devoid of material facts worthy of investigation, the police in the circumstance would least be expected to embark on a wild goose chase all in the name of investigation. In such a situation, the Court would have nothing before it to consider by way of alibi. The learned counsel further contended that when PW2 testified he stated that the appellant and the four (4) other accused persons were transferred from Tudun Wada Police Station by the D O Tudun Wada Police to the Anti-Robbery Section, State C.I.D, Kaduna on the 22/8/2006 at about 1.00pm and under cross-examination, PW2 stated that the appellant and the other accused were transferred to the State C.I.D Anti -Robbery Section on 22/8/2006 and referred the Court to pages 11 and 12 of the Record of Proceedings. The defence did not discredit PW2 in respect of this piece of evidence and the trial judge also believed the evidence of PW2 and learned counsel urge the Court to answer Issue One in the negative as the defence of alibi raised belatedly by the appellant during his testimony as DW2 was an afterthought and therefore cannot avail him. The appellant also failed to adduce any evidence during his defence to substantiate the defence considering that it was only raised during the trial in his testimony as DW2.

After going through the record of appeal and having full appraisal of the evidence and the respective arguments in the briefs of the parties, it is clear that the Appellant was charged at the trial Court with armed robbery contrary to
Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act, 1990 (as amended). Thus, Is the Appellant then guilty as convicted and sentenced by the trial Court?

The essential ingredients of armed robbery have been listed in a plethora of cases to include:

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

(b) That the robbery or robberies was an armed robbery; and

(c) That the accused person took part in the robbery.

SOWEMIMO v. STATE (2012) 2 NWLR (PT.1284) 372; JOHN v STATE (2011) 18 NWLR (PT 1278) 353; STATE v SALAWU (2011) 18 NWLR (PT 2279) 580; BELLO V. STATE (2007) ALL FWLR (PT.396) 702; MOLANLE V. STATE (2003) 7 NWLR (PT.925) 431; and ISIBOR V. STATE (2003) 3 NWLR (PT.754) 250.

On the ingredients, the evidence of PW1, (who was the eyewitness of the robbery incident) contained on pages 9-10 of the records have left no stone unturned to the fact that there was robbery and it was an armed robbery as the Appellant with his gang were in the possession of sticks and iron rods. Also the evidence of PW2 contained on page 11 of the record. Similarly, Exhibits 2 and 2A (being the English translated version of the confessional statement of the Appellant) show that the accused admitted that they were in the possession of arms. “Armed Robbery” from the provision of Section 2 of the Robbery and Firearms (Special Provisions) Act simply means to rob while in possession of any firearm or any offensive weapon or being in company with any person so armed. What then is “Robbery” and what constitutes “arms?” As regards the word “Arms” there is a clear subdivision of that term under Section 11 of the Act into “firearms” and “Offensive Weapons.” “Firearms” include the following – cannon, gun, rifle, carbine, machine gun, cap gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearms whether whole or detached pieces”, while “offensive weapons” refer to “any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.” It is therefore on record and in evidence that the Appellant with his gang were armed with sticks and iron rods which are offensive weapons. It is now well settled that the burden of proof in criminal cases rest on the prosecution that alleged the commission of the offence and this burden does not shift save in recognized instances. The provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999(as amended) that guarantees to every person charged with a criminal offence the right to be presumed innocent until proved guilty and Section 135 (1) of the Evidence Act, 2011 that where the commission of a crime by a party to any proceeding is directly in issue in the proceeding, civil or criminal it must be proved beyond reasonable doubt have by their combined effect placed the burden of proving the guilt of an accused person on the prosecution by proving all the ingredients of the alleged crime beyond reasonable doubt. See YONGO V C.O.P (1992) 4 SCNJ 113; OGUNDIYAN V THE STATE (1991) NWLR (PT 181)19; BABUGA V THE STATE (1996) 7 NWLR (PT 406) 274; R V LAWRENCE (1932)11, NLR 6; AFOLALU V STATE (2010)16 NWLR (PT 1220) 584.

In a charge of Armed Robbery, what is of utmost importance is to show that the Appellant was in the company of the robbers who were armed. In the case of OKPULOR V. THE STATE (1990) 7 NWLR (PT.164) 581 at 590, BELGORE JSC (as he then was) held:

“Once it was established by the prosecution that the appellant was among the robbers and they were armed with offensive weapons, e.g. Firearms, by common design, the appellant is guilty of armed robbery…In law it matters not that the appellant himself did not carry a weapon.”

In finding that the prosecution did in the instant case establish the ingredients of the offence of armed robbery against the accused persons, the learned trial judge considered the oral and documentary evidence before the Court. On the evidence of the PW1, the learned judge stated at pages 26 – 27 of the record of appeal as follows;

“The evidence of the PW 1 is that on 14/8/2006, around 2:00 – 3:00 am at No.25 Kwoi Street, Sabon GariTudun Wada Kaduna, they heard the sound of door to their father’s room being broken or forced open.

His senior brother, Salisu Zakari Alhassan and he then woke up, He asked three times”

“Who is that?” “But there was no answer. His senior brother asked him to open the door and when he opened the door between their room and their father’s room, he saw some people he did not know holding weapons in their hands, such as sticks and iron rods. The people broke the door. He then opened the door leading outside and ran out before his senior brother. He heard his senior brother shouting. The senior brother was also able to escape, ran out and followed him. They tried to enter their neighbor’s house but the door was locked. The people followed them, caught them and took them back to their room and asked them to lie on his buttocks and broke his bag and also threw out the things in the bag. He took N 60,000.00 from the pocket of the bag and also took N 5,000.00 from his senior brother. The man also took a Nokia camera GSM handset belonging to his senior brother. His own Sagem GSM handset was also taken away. The matter was reported to the police… This witness was not cross-examined and his evidence is therefore unchallenged. There is also no evidence to the effect that what the PW1 said in his evidence did not happen, In this regard, the evidence of the PW1 is uncontroverted. I have no reason to doubt the evidence of the PW1 and the evidence clearly established that there was a robbery at no. 25 Kwoi Street, Tundun Wada, Kaduna on 14/8/2006. The evidence also establishes that the robbers were armed with sticks and iron rods and that they inflicted injuries on the senior brother of the PW1. They were therefore armed with offensive weapons. They took away N 60,000.00 belonging to the PW1 and N60, 000.00 belonging to the senior brother of the PW1. In addition, the robbers also took the PW1 Sagem GSM Handset and the senior brother’s Nokia GSM Handset.”

On the totality of the evidence of the PW 2 and PW3 who were police officers, the learned trial judge found on page 29 of the record of appeal that;

“From the totality of the evidence of the PW2 and PW3, therefore, the only relevant and material evidence is the evidence of the PW2 that the accused persons took the police to the house No. CR25 Kwoi Street, Tudun Wada as the place they committed robbery at and that when they enquired from the people in the house they confirmed that there was a robbery operation in the house on 14/8/2006. Also the PW1 said the police went to the house with the accused pointed at the house and said it was one of the houses where they robbed.”

On Exhibits 2 and 2A, the 2nd accused (appellants) statement obtained by PW2 and tendered without objection, the learned trial judge found at page 30 of the record of appeal that;

“In Exhibit 2 and 2A, the 2nd accused said he knows Sani Mama, Abdullahi Usman, Aminu Adamu and NasiruIdris and that they stayed in the same area and they grew up together. They met at Obalende where they used to go and drink and chase women and they agreed to go and rob and get money. Abdullahi said he would take them to the house of one Alhaji Shusha. They planned to go to the house over the weekend but he forgot the date. On getting to the house there was no way for them to enter so they entered the neighbor’s house, one Auwalu. They attacked them with sticks and cutlass and robbed him of the sum of N 6,000.00 cash, one Nokia handset and another handset”.

The learned trial judge found and held that the statements of the accused persons were positive and had been properly proved and they are free, direct and voluntary confessions of the accused persons. This statement though does not bind the other accused persons, it is binding on the maker.

The law is that the guilt of an accused person may be established by the following ways or at least one of them i.e.

1. By evidence of eye witness account of the incident

2. By circumstantial evidence and (3) by confession of the accused person. See Igabele V. State (2006) 6 NWLR (pt.975) 100; Mbang V. state (2012) Vol. 6-7 MJSC (pt.IV) 119.

From the findings of the learned trial judge which I had earlier on set out, the trial Court had before it the eye witness account of the PW 1 who was a victim of the robbery and the confession of the appellant as to the commission of the crime.

On what amounts to a confession, Section 28 of the Evidence Act, 2011 provides that;

“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”.

In the Case of Jimoh V. State (2014) Vol. 3 MJSC 1 at 44 it was stated by Ariwoola JSC that “It is the law that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional”. See Patrick Ikemson & Ors V. The State (1989 1 CLRN 1, (1989) 3 NWLR (Pt. 110) 445.

Where therefore the confession is free, voluntary direct positive, duly made and satisfactorily proved, it is sufficient on its own to warrant conviction in as much as the Court is satisfied of the truth thereof. SEE AZABADA V. THE STATE (2014) VOL 6 -7 M1SC (PT. 1) 149. AKPAN V. STATE (2008) 8 SCNJ 68; NWAEBOYI V. STATE (1994) 5 NWLR (PT. 342) 138. It is however desirable that some other evidence consistent with the confession of the accused person is produced especially where the accused person has retracted the statement. SEE ONOCHIE V. THE REPUBLIC (1971) 1 ALL NLR 151. In the instant case the learned trial judge answered positively the following questions before he concluded that the appellant’s statement admitted as Exhibit 2 and 2A amounted to a confession and attached weight thereto. (1) Whether there is anything outside the confession to show that it is true. (2) Whether it is corroborated, (3) Whether the relevant statements made therein are of facts, true as far as can be tested, (4) Whether the appellant had the opportunity of committing the offence, (5) Whether the confession is possible and (6) Whether it is consistent with other facts that had been ascertained and established.

The learned trial judge therefore had before him the oral account of the victims of the robbery and the confession of the appellant both of which he considered extensively before relying thereon

It is also noteworthy that the trial Court considered the alibi raised by the appellant and other accused persons and found same as a “cock and bull story and unbelievable” more so that they were not raised at the earliest opportunity so as to afford the police the opportunity of investigating the alibi. He rejected it.

Alibi, a latin word simply means elsewhere and an accused person raising the defence of alibi is saying that he was somewhere else and could not possibly have been at the locus criminis at the time the offence was committed. The respective duties of the prosecution and the accused person where alibi has been raised are that the accused person has the duty to raise the defence promptly and properly and to furnish the necessary information about his whereabouts while the prosecution has a duly to investigate an alibi and rebut same as part of its burden to prove the case beyond reasonable doubt. The accused person therefore has the onus to establish the plea of alibi raised by him on the balance of probabilities and failure to investigate the alibi does not automatically result in failure of the prosecution’s case. SEE SAMUEL ATTAH V. STATE (2010) VOL.3 (PT.IV) M.J.S.C PAGE 139; AFOLALU V.STATE (2010) VOL. 6 – 7 MJSC 187. SHEHU V. STATE (2010) VOL. 3 (PT.II) MJSC 74.

From the foregoing it becomes clear that the prosecution has proved that there was robbery on or about the 14th August, 2006 as alleged in count 1 of the charge, which was an armed robbery and the appellant was one of the robbers all of which are the ingredients of the offence of armed robbery

It must be remembered in criminal trials that the burden of proving the guilt of the accused person beyond reasonable doubt placed on the prosecution does not amount or translate to proving beyond every shadow of doubt. See BAKARE V THE STATE (1987) 3 SCNJ 9, AIGBADION V STATE (2000) 4 SC (PT.1) I, IGABELE V STATE (2006) 6 NWLR (PT.975)100, KIM V STATE (1992) 4 NWLR (233) 17, the burden on the prosecution is to establish the ingredients of the alleged offence beyond reasonable doubt.

The learned trial judge had rightly in my view discharged the accused persons on count 2 for lack of credible evidence in support of that Court.

From the evidence available to the Court the trial Court was correct to have found the appellant and other accused persons guilty of the offence of armed robbery as alleged in count 1 of the charge, and I thereby resolve this issue against the appellant.

The second issue is whether the learned trial judge was right to have relied on the contradictory evidence of the PW1 and appellant’s confessional statement to convict the appellant.

I had extensively dealt with the confessional statement of the appellant in my consideration of issue number one, and I need not repeat myself on this issue. I had held the view that there are enough features in the statement to make it qualify as a confession as well founded by the learned trial judge. The issue that is outstanding here is whether any such contradiction exists in the evidence of the PW1 that renders it incredible or unreliable.

The contradiction alleged by the appellant’s counsel on page 16 of his brief of argument relates to what transpired in the house of the victim of the robbery especially when the PW1 opened the door for the robbers that he saw some people he did not know who held weapons in their hands such as sticks and iron rods and that he only knew one of the accused persons because they almost lived in the same area while he only met the others when police brought them to their house.

The law is firmly settled that it is not every contradiction that will result in the judgment of the trial Court being set aside. Such a contradiction must be of substance or relate to the material ingredients of the offence, and not mere discrepancies or inconsistency in evidence. See EJEKA V STATE (2003)7 NWLR (PT.819) 408, NDIDI V STATE (2005) 17 NWLR (PT 953) 17, DAGGAYA v STATE (2006)7 NWLR (PT 980) 637.

The contradiction alleged by the appellant in the instant case does not go to the root of the ingredients of the offence of armed robbery and is therefore not material to warrant interference with the trial Court’s judgment. I resolve issue 2 against the appellant.

Having resolved the issues against the appellant, the appeal has nothing to stand upon, it deserves to be dismissed and it is dismissed accordingly. I affirm the judgment of the High Court of Kaduna State delivered on the 29th June, 2010 including the conviction and sentence of the appellant as well as the recommendation to the Governor of Kaduna State for committal of the death sentence.

ADEFOPE-OKOJIE, JCA

Having had a preview of the judgment of my learned brother, ISAIAH O. AKEJU, JCA I am in agreement that this appeal be dismissed. I affirm the conviction and sentence of the Appellant.

WAMBAI, JCA

I was privileged to read in draft the lead Judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, JCA and I cannot but agree with the reasoning and conclusion therein.

I agree that the appeal lacks merit and deserves to be dismissed. I hereby dismiss the appeal and affirm the Judgment of the lower Court.

Appearances:

OKECHUKWU NWAEZE, ESQ. For Appellant

I. M SAMSON, ESQ. For Respondent