(2016) LPELR-41174(CA)

Transcription

1 ADAMU v. STATE CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna IBRAHIM SHATA BDLIYA ON TUESDAY, 22ND MARCH, 2016 Suit No: CA/K/335/C/2013 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU AMINA AUDI WAMBAI Between AMINU ADAMU - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 1. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstance where an identification parade would not be necessary "It settled that an identification parade is completely unnecessary, and would amount to a complete waste of time, where an accused defendant has confessed to the commission of the crime, as in the instant case - Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Fatai Vs State (2013) 10 NWLR (Pt. 1361) 1, Sadiku v. State (2013) 11 NWLR (Pt. 1364) 191."Per ABIRU, J.C.A. (Pp , Paras. E-A) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: On whom lies the burden of proof of establishing alibi "At this state, an accused person has no duty or onus of proving the alibi but for the prosecution to adduce credible evidence demolishing the assertions of the accused person. The word "alibi" means "elsewhere." when an accused person relies on alibi, it means that he was not at the scene of the crime, but elsewhere and he could not have been the one that committed the offence with which he has been alleged to have committed. In Osuagwa v. State (2013) 5 NWLR (Pt. 1347) p. 395 the Supreme Court when dealing with the plea of alibi by an appellant enunciated that alibi mean "elsewhere," when an accused contends that he cannot be guilty of the offence with which he is charged because at the time of commission of the offence he was somewhere else, he raises the defence of alibi. After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. That is the earliest opportunity a suspect has to raise the defence of alibi. He must state, in clear terms, the day, time and address of where he was when the police alleged that he committed the offence. In Court, where an accused person sets up the defence of alibi, evidence led by the accused person must be taken seriously. However, the onus is not on the accused person to establish alibi to the satisfaction of the Court but rather for the prosecution to disprove it. But, the police has no duty to disprove a worthless alibi. A plea of alibi is demolished if the prosecution adduces sufficient and cogent evidence to fix the accused person at the scene of the crime at the material time. See also Ikomo v. State (1973) SC p. 231; Okponefe v. State (1962) 2 NSNLR P. 346; Yanor v. State (1965) 1 ALL NLR p. 193; Njovens v. State (1973) P. 17; Ozaki v. State (1990) 1 NWLR (Pt. 124); Gachi v. State (1965) NWLR (Pt. 333 and Chewmoh v. State (1986) 2 NWLR pt.22 p. 31."Per BDLIYA, J.C.A. (Pp , Paras. B-F) - read in context 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Ingredients required to be proved by the prosecution to establish the offence of armed robbery "It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers - Osetola v. State (2012) 17 NWLR (Pt. 1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt. 1358) 138, Ajayi v. State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved - Sabi v. State supra."per ABIRU, J.C.A. (Pp , Paras. E-B) - read in context

3 4. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "It is settled in our law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497."Per ABIRU, J.C.A. (P. 21, Paras. B-E) - read in context 5. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: What constitute the offence of armed robbery "Now, Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person."per ABIRU, J.C.A. (P. 37, Paras. A-C) - read in context 6. CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Whether the weapon used to carry out armed robbery must be tendered by the prosecution to secure a conviction "Counsel to the Appellant criticized the case of the Respondent before the lower Court on the ground that the weapons used in the said robbery were not tendered in evidence and that as such there was no proof that the robbery was carried out with offensive weapons. A read through the confessional statement shows that the Appellant admitted that he was possession of a stick at the time of the robbery while the fifth accused person was carrying a cutlass and the first accused person was carrying a knife and the other co-accused persons were carrying sticks. The first prosecution witness gave unchallenged evidence that the persons who robbed him and his brother were armed with iron-rods and sticks and that he was beaten with an iron rod on his bottom while his brother was beaten up and injured in the course of the robbery. It is clear that a knife, a cutlass, sticks and iron rod come within the definition of offensive weapon under the provisions of the Robbery and Firearms (Special Provisions) Act. It is settled law that where there is cogent evidence of the use of a weapon or weapons in the commission of a crime and cogent evidence linking the accused person with the use of the said weapon or weapons in the commission of the said crime, the non-tendering of the weapon at the trial is of no consequence and cannot vitiate a judgment - Garba v. The State (2000) 4 SCNJ 315, Ochiba v. State (2010) LPELR-9002(CA), Kabaka v. State (2010) LPELR-4303(CA), Salahudeen v. State (2013) LPELR-21851(CA)."Per ABIRU, J.C.A. (Pp , Paras. A-B) - read in context

4 7. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: When must the defence of alibi be raised "Additionally, the defence of alibi is a matter that is exclusively within the knowledge of an accused person and thus the burden is always on the accused person to provide at the earliest opportunity the materials or data of where he was at the time of the commission of the crime so as to enable the Police investigate the facts of the defence and the earliest opportunity has been held by the Courts to be in the course of interrogation of the accused person by the Police. Where the defence is raised by an accused person for the first time in the witness box, as in the instant case, it is treated as an afterthought and the failure to investigate it will not, in such circumstances, vitiate the judgment of the lower Court - Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515, Azeez v. State (2005) 8 NWLR (Pt. 927) 312, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 and Adeyemi v. State (2011) 5 NWLR (Pt. 1239) 1."Per ABIRU, J.C.A. (P. 42, Paras. B-F) - read in context 8. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: When the defence of alibi will collapse "Further, it is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses - Olaiya v. State (2010) 3 NWLR (Pt. 1781) 423, Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 and Sunday v. State (2010) 18 NWLR (Pt. 1224) 223."Per ABIRU, J.C.A. (Pp , Paras. F-B) - read in context 9. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "The commission of an offence by an accused person can be proved or established by either of the following. (a) The confessional statement of the accused person; or (b) Circumstantial evidence; or (c) Evidence of eye-witness of the crime. Thus, the prosecution does not always need an eye-witness evidence to secure the conviction of an accused person, even where the charge is that of culpable homicide or murder, if the charge can be proved by any of the ways enumerated supra. See Igalede v. State (2006) 6 NWLR (Pt. 1000) P. 120; Lori v. State (1980) 8-11 SC P. 81; and Emeka v. State (2001)14 NWLR (Pt. 734) P. 666."Per BDLIYA, J.C.A. (P. 44, Paras. B-F) - read in context

5 10. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in criminal cases; effect of failure to discharge the burden "It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal - Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoko v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589."Per ABIRU, J.C.A. (Pp , Paras. D-C) - read in context 11. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonable doubt means proof beyond all iota of doubt; how is it attained " It must, however, be stated that proof beyond reasonable doubt is "not proof to the hilt" and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt - Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus: "Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable' the case is proved beyond reasonable doubt but nothing short will suffice."per ABIRU, J.C.A. (Pp , Paras. C-D) - read in context

6 12. EVIDENCE - CONFESSIONAL STATEMENT: Effect of a confessional statement admitted without objection "It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true - Osung v. State (2012) 18 NWLR (Pt. 1332) 256, Ajibade v State (2013) 6 NWLR (Pt. 1349) 25 at 44 E-H, Stephen v State (2013) 8 NWLR (Pt. 1355) 153 at 173 D-H."Per ABIRU, J.C.A. (P. 29, Paras. C-F) - read in context 13. EVIDENCE - CROSS-EXAMINATION : Effect of failure to cross-examine a witness on material point "Firstly, it must be pointed out that the records of appeal show that that at no time during the cross-examination of the second prosecution witness did the Counsel to the Appellant put the witness to task on whether or not the Appellant made the confessional statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant will be believed and any subsequent suggestion otherwise by the accused defendant is to be treated as an afterthought - Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119, Chukwu v State (2013) 4 NWLR (Pt. 1343) 1, Egwumi v. State (2013) All FWLR (Pt. 678) 824. This point was succinctly explained by Achike, JSC in Oforlete v. State (2000) 12 NWLR (Pt. 631) 475 at 436 C-E thus: "where an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence.... After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client's case through crossexamination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory, if not suicidal bad practice, for counsel to neglect to cross-examine a witness after evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence."per ABIRU, J.C.A. (Pp , Paras. A-E) - read in context

7 14. EVIDENCE - CONFESSIONAL STATEMENT: What an accused person desirous of impeaching his earlier statement is bound to establish "Secondly, and more importantly, the records of appeal show that in his testimony in his defence before the lower Court as the third defence witness, the Appellant made no reference to the confessional statement; he did not deny making the statement, he did not contest its contents or his signature thereon and neither did he contradict the testimony of the second prosecution witness on the making of the statement. It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement - Hassan v. State (2001) 15 NWLR (Pt. 735) 184, Kazeem v. State (2009) WRN 43 and Osetola v. State (2012) 17 NWLR (Pt. 1329) 251."Per ABIRU, J.C.A. (Pp , Paras. E-D) - read in context 15. EVIDENCE - CONFESSIONAL STATEMENT: Effect of failure of an accused person to object to the admission of his confessional statement "The Appellant did not raise and/or establish any of these situations in his evidence before the lower Court. All that the Appellant did in his testimony was to give evidence inconsistent with the contents of the confessional statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered - Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383, Oladotun v. State (2010) 15 NWLR (Pt. 1217) 490, Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 1341) 285, Osuagwu v. State supra. In the instant case, the Appellant did not offer any explanation for the inconsistency. There was nothing presented by the Appellant to warrant the need for the lower Court to look for corroborative evidence - Osung v. State supra. In Bassey v. State (2012) 12 NWLR (Pt. 1314) 209, the Supreme Court held that where an accused person confesses to an offence in his extra-judicial statement and had no objection to the statement being tendered and admitted in evidence and did not lead any cogent evidence in his testimony in Court resiling from the contents of the statement, there would be no need to look for evidence outside the confession anymore."per ABIRU, J.C.A. (Pp , Paras. D-F) - read in context

8 16. EVIDENCE - CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person "It is trite that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration - Stephen v. State (1986) 5 NWLR (Pt. 46) 978, Yahaya v. State (1986) 12 SC 282, Oseni v. State (2012) 5 NWLR (Pt. 1293) 351, Oladipupo v. State (2013) 1 NWLR (Pt. 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt. 1366) 435."Per ABIRU, J.C.A. (Pp , Paras. F-B) - read in context 17. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "Going further and assuming that the Appellant presented a situation that necessitated the need for corroborating facts of his confessional statement, what is required is that before the Court would believe and act on the confession it should subject the confessional statement to the following tests: i. whether there is anything outside the confession which shows that it may be true; ii. whether it is corroborated in any way; iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested; iv. whether the defendant had the opportunity of committing the offence; v. whether the confession is possible; and vi. whether the alleged confession is consistent with other facts that have been ascertained and established. See the cases of Osuagwu v. State (2009) 1 NWLR (Pt. 1723) 523, Kabiru v. Attorney General, Ogun State (2009) 5 NWLR (Pt. 1134) 209, Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1 and Galadima v. State (2012) 18 NWLR (Pt. 1333) 610."Per ABIRU, J.C.A. (Pp , Paras. D-C) - read in context 18. EVIDENCE - CONTRADICTION IN EVIDENCE: How contradiction in the evidence of a witness is established "It is elementary that in determining whether there are contradictions in the case of a, party, the entire evidence led before the Court must be looked at holistically, and this includes the evidence of the other party as the law recognizes that where the evidence led by a partly buttresses and explains the evidence of the other party, that other party can rely on it to support his case - Iroagbara v. Ufomadu (2009) 11 NWLR (Pt. 1153) 587, Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362, Gbadamosi v. Okege (2011) 3 NWLR (Pt. 1233) 175."Per ABIRU, J.C.A. (Pp , Paras. F-B) - read in context

9 19. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; effect of failure of the prosecution to discharge the burden of proof on it "The law is trite, the commission of a crime by an accused person must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it. The burden of proof lies on the prosecution and it never shifts. If in a criminal trial, on the whole of evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof laid on it by the law and the accused is entitled to acquittal. However; this does not mean the prosecution must call every available piece of evidence to prove its case. It is enough if sufficient evidence is adduced to discharge the onus which the law lays upon the prosecution. See Alonge v. I.G.P. (1959) SCMLR 516 and Igabele v. State (2006) 6 NWLR (Pt. 925) p. 127."Per BDLIYA, J.C.A. (Pp , Paras. C-A) - read in context

10 20. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Meaning of proof beyond reasonable doubt "What is proof beyond reasonable doubt in criminal jurisprudence? In the case of Afolalu v. State (2010) All FWLR (Pt. 588) P. 812, the Supreme Court per Mohammed J.S.C, said: "The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable double is discharged and the conviction of the accused will be upheld even if it is on the credible evidence of a single witness... On the other hand, where on the totality of the evidence, a reasonable doubt is created; the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of doubt resulting in the discharge and acquittal." The Court went further to state as follows: "Proof beyond reasonable doubt is not proof beyond a shadow of doubt. It is not therefore, proof beyond all possible or imaginary doubt, that is such proof as precludes very reasonable hypothesis except that which it tends to support. It is proof to moral certainty, such proof as satisfies the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the trial judge." In the case of Lor & Ors v. The State SC p. 99 Nnamani, J.S.C (of blessed memory) dealing with proof beyond reasonable doubt and its applicability in proving the commission of an offence as required by Section 135(1) and (2) of the Evidence Act said: "The Basic necessity before a verdict of guilty in a criminal charge can be pronounced is that the jury are satisfied of the guilt of the accused beyond reasonable doubt. Proof beyond reasonable doubt as Denning J (as he then was) stated in Miller v. Minister of Pensions (1947) 2 ALL E.R. 372, 373. Does not mean proof the shadow of doubt. The taw would fail to protect the community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt but nothing short of that will suffice."per BDLIYA, J.C.A. (Pp , Paras. B-D) - read in context

11 21. WORDS AND PHRASES - "FIREARMS": Statutory definition of "firearms" "Section 11 of the Act defined firearm to include any cannon, gun, rifle, carbine, machine gun, cap-gun, flint lock gun, revolver, pistol, explosive, or ammunition or other firearm, whether whole or in detached pieces. It went further to say that "offensive weapon" means 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, machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. These definitions were reiterated by the Court of Appeal in Kayode v. State (2012) 11 NWLR (Pt. 1312) 523."Per ABIRU, J.C.A. (Pp , Paras. D-A) - read in context

12 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of the Kaduna State High Court in Charge No. KDH/KAD/5C/2007 delivered by Honorable Justice G. I. Kurada on the 29th of June, The Appellant, along with four other persons, was arraigned before the lower Court on a two count charge of armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990, as amended. The Appellant was the third accused person and he was alleged to have attacked, in the company of the four other persons, one Auwal Zakari Alhassan and one Salisu Zakari and members of their family at No. 25, Kwoi Street, Zango, Tudun Wada, Kaduna in the night of the 14th of August, 2006 at about 2:40am while armed with sticks, iron rods, machetes and other dangerous weapons and to have stolen the sum of N60, and one mobile phone handset from Auwal Zakari Alhassan and the sum of N5, and one mobile phone handset from Salisu Zakari. The Appellant pleaded Not Guilty to the two count charge and the matter proceeded to trial and during the course of which the 1

13 Respondent called three witnesses in proof of the case against the Appellant and tendered exhibits while only the Appellant testified in his own defence and he did not tender any exhibit. At the conclusion of hearing and after the final addresses of Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant was aggrieved by the decision and he applied to this Court for an extension of time within which to file his notice and grounds of appeal against it. Sequel to the grant of his request by this Court, the Appellant caused his Counsel to file a notice of appeal dated the 5th of February, 2013 on the 7th of February, 2013 and it contained four grounds of appeal. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 16th of July, 2013 on the 23rd of January, The Respondent reacted by filing a brief of arguments dated the 4th of July, At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal. Counsel to the Appellant 2

14 formulated two issues for determination in the Appellant's brief of arguments and these were: i. 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. ii. 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. On the first issue for determination, Counsel to the Appellant stated that it was trite law that there were certain elements that the Respondent must prove to succeed in a charge of armed robbery and he listed the elements as (i) that there was a robbery; (ii) that the accused person committed the robbery; and (iii) that at or immediately before or after the robbery, the accused person wounded or used personal violence to any person and he referred to the cases of John v. State (2011) 18 NWLR (Pt. 1278) 353 and State v. Salawu (2011) 18 NWLR (Pt. 1279) 580. Counsel stated that the Respondent was expected 3

15 to prove the three elements that constituted the offence beyond reasonable doubt and that failure to prove any of the elements was fatal to the case. Counsel conceded that, from the evidence led by the Respondent, it was not in dispute that there was a robbery on the alleged date, but stated that the critical question was whether the Appellant was amongst those who committed the robbery and that the evidence led by the Respondent failed to answer this vital question. Counsel stated that the first prosecution witness, one of the victims of the robbery, testified that the robbery was carried out by persons he did not know and that this piece of evidence made it incumbent on the Respondent to show that an identification parade was carried out by the Police to ascertain the identity of the persons who carried out the robbery. Counsel stated that where all accused person is not arrested at the scene of the crime and the crime is stated to have been committed in the dark night when visibility is poor, the only valid and proper way for the prosecution to prove the identity of the perpetuators of the crime is by showing that an identification parade was conducted 4

16 and he referred to the case of Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360 on when an identification parade must be conducted and the cases of Alabi v. State (1993) 7 NWLR (Pt. 307) 511 and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170. Counsel stated that there was no evidence that an identification parade was conducted by the Police to identify the Appellant as one of the perpetrators of the robbery and he traversed through the testimonies of the first and third prosecution witnesses and concluded that the quality of the evidence ted by the Respondent on the issue of identity was poor and that the lower Court ought not to have relied on it to convict the Appellant. Counsel stated further that it was an essential element of a charge of armed robbery to show that the robbery was carried out with offensive weapons and he relied on the cases of Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1, Osuagwu v. State supra and Adeyemi v. State (2013) 3 NWLR (Pt. 1340) 78. Counsel stated that throughout trial in the lower Court the Respondent did not tender any weapon or weapons allegedly used in carrying out the robbery and as such failed to establish an essential 5

17 element of the offence alleged against the Appellant. Counsel stated that it was also a requirement of a charge of armed robbery that the robber wounded or used personal violence on the victim and that though the first prosecution witness testified that his senior brother, a victim of the robbery, sustained injuries as a result of beatings received in the course of the robbery, the Respondent did not call the said senior brother of the first prosecution witness as a witness at the trial and that this is more than meets the eyes and it raised a presumption of withholding evidence under Section 149 (d) of the Evidence Act and he relied on the case of State v. Azeez (2008) 14 NWLR (Pt. 1180) 439. Counsel also stated that the Appellant raised the defence of alibi in the course of his testimony in his defence as the third defence witness before the lower Court when he testified that he was at the State Criminal Investigation Department of the Police on the 14th of August, 2006 when the robbery incident took place. Counsel conceded that the tenor of case law authorities is that a defence of alibi must be raised at the earliest possible period to enable the 6

18 Police investigate, but he stated that even where it is raised during trial, the burden of proof still laid on the prosecution and that it was not for an accused person to establish or prove his defence of alibi and that the Respondent ought to have adduced contrary evidence during the crossexamination of the Appellant to disprove the defence, and it failed to do so. Counsel stated that the lower Court was obliged to consider all defences raised by the Appellant at the trial, no matter how stupid, and that the lower Court dismissed the defence of alibi as a cock and bull story in the judgment without the Respondent adducing any contrary evidence and that this was wrong and he referred to the case of Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. Counsel stated that the evidence of the Appellant on his alibi was corroborated by the testimony of the second prosecution witness, a police officer, who stated that the Appellant was not arrested at the scene of the crime and that the failure of the Respondent to discredit the defence of alibi of the Appellant ought to have created a doubt in the mind of the lower Court and which doubt should have been resolved in 7

19 favour of the Appellant and he referred to the case of Azeez v. State (2005) 8 NWLR (Pt. 927) 312. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant. On the second issue for determination, Counsel took a look at the testimony of the first prosecution witness and stated that the witness testified in a portion of his evidence that when he opened the door, he saw people he did not know holding weapons in their hands such as sticks and iron rods, while in another part of the evidence he said he knew one of the accused persons because they lived in the same area and he only met the others when the police brought them to their house. Counsel thereafter proceeded to define when a statement is said to be contradictory and he referred to the case of Okereke v. State (1998) 3 NWLR (Pt. 540) 75 and stated that where there are material contradictions in the evidence of a prosecution witness that are fundamental and substantial, they are fatal to the case of the prosecution and he referred to the case of Balogun v. A. G. Ogun State (2001) 14 NWLR (Pt. 733) 331 on the factors that a trial Court should consider in 8

20 dealing with contradictory evidence. Counsel stated that the testimony of the first prosecution witness was contradictory and that the contradiction was substantial and fundamental because it touched on the issue of the identity of the perpetuators of the crime and that as such the lower Court ought to have rejected the evidence as unbelievable, notwithstanding the fact that the witness was not cross-examined during the trial and he referred to the cases of Okereke v. State supra, Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, F.R.N. v. Iweka (2013) 3 NWLR (Pt. 1341) 285, amongst others. Counsel further stated that, from the judgment, the lower Court relied on the confessional statement of the Appellant, the English and Hausa versions of which were tendered as Exhibits 3 and 3A at the trial, and that though a trial Court can convict solely on the basis of a confessional statement, it must look for corroborative factors outside the confessional statement which make the confession plausible where the charge is a capital offence and he referred to the cases of Stephen v. State (2013) 8 NWLR (Pt. 1355) 153. Counsel thereafter referred to the six principles 9

21 guiding evaluation of a retracted confessional statement as laid down in case law authorities and he place reliance on the case of Shurumo v. State (2010) 16 NWLR (Pt. 1218) 65, amongst others and stated that the expected corroborative evidence must come from the prosecution and never from the defence and that there was nothing in the testimonies of the second and third prosecution witnesses which corroborated the alleged confessional statement of the Appellant. Counsel referred to portions of the confessional statement and stated that there was nothing in the entire evidence led by the Respondent corroborating the different portions of the confessional statement and that neither the English nor the Hausa version of the confessional statement was signed or thumb printed by the Appellant, thus indicating that the Appellant did not make the statement. Counsel stated that it was obvious from the above that the lower Court did not properly evaluate the confessional statement of the Appellant before relying on it to convict the Appellant. Counsel stated that the Respondent failed to lead sufficient evidence to prove the essential elements of the charge against 10

22 the Appellant and/or to lead any evidence linking the Appellant to the alleged crime and that the proper order the trial Court ought to have made was one discharging the Appellant and he referred to the cases of Obi v. State (2013) 5 NWLR (Pt. 1346) 68 and Onagoruwa v. State (1993) 7 NWLR (Pt. 303) 49. Counsel urged this Court to also resolve the second issue for determination in favour of the Appellant and to allow this appeal and set aside the judgment of the lower Court and sentence passed on the Appellant therein. In his response, Counsel to the Respondent formulated four issues for determination in the Respondent's brief of arguments. These were: i. 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 DW1 and whether failure by the trial Judge to order such an investigation caused a miscarriage of justice warranting the setting aside of the Appellant's conviction. ii. Whether there was any contradiction in the testimony of PW1 and if there was such contradiction, was it material enough to cast reasonable doubt on the prosecution's case. 11

23 iii. 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. iv. Whether there was sufficient evidence linking the Appellant with the crime to justify his conviction. On the first issue for determination, Counsel stated that the law is that where an accused person raises the issue of alibi that he was somewhere else other than the scene of the crime at the time of commission of the crime with which he is charged and gives facts and circumstances of his where about, the prosecution is duty bound to investigate the alibi set up to verify its truthfulness or otherwise and he referred to the case of Agboola v. State (2013) 5 SCNJ (Pt. II) 683. Counsel stated that for the defence of alibi to be availing however, it must have been raised at the earliest opportunity by an accused person in a statement to the police during investigation and that where this is not done the police have no duty to investigate the defence and also that the accused person must have given detailed and comprehensive particulars of his where about on the day of 12

24 commission of the offence including the specific place he was, the persons in whose company he was and what, if anything that transpired at the time in the place he was. Counsel stated that in the instant case, the Appellant never raised the defence of alibi in his confessional statement, Exhibits 3 and 3A, and did not raise it until his testimony in the course of his defence as the third defence witness and further that apart from saying that he was at State Criminal Investigation Department on the day of the incident, the Appellant did not give any further particulars to support the defence of alibi and that in such a case the defence was purely an afterthought and could not avail the Appellant and he referred to the cases of Udoebre v. State (2001) 6 SCNJ 54, Agboola v. State supra and Bashaya v. State (1998) 4 SCNJ 202. Counsel stated further that there was unchallenged evidence before the lower Court in the testimony of the second prosecution witness that it was on the 22nd of August 2008 that the Appellant and his four coaccused persons were transferred by the Divisional Police Officer in charge of Tudun Wada Police Station to the State Criminal 13

25 Investigation Department and that the lower Court believed this testimony. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent. On the second issue for determination, Counsel stated the pieces of evidence of the first prosecution cited by Counsel to the Appellant as being contradictory were not contradictory at all and that what the first plaintiff witness said was that he did not know the robbers that attacked him and that he knew the fourth accused person only because they lived in the same neighbourhood and not because he identified the fourth accused person at the scene of the crime. Counsel stated that the testimony of the first prosecution witness was consistent with the statement of the fourth accused person in his confessional statement, Exhibits 4 and 4A, wherein the fourth accused person stated that he did not enter the house of the first prosecution witness with the other accused persons because the inhabitants of the house knew him. Counsel urged this Court to thus discountenance the submissions of Counsel to the Appellant on the alleged contradiction. On the third issue for determination, 14

26 Counsel stated that the law was that where a confessional statement is free, direct, positive and voluntary and it is properly proved, it is sufficient to support a conviction, without the need for corroborative evidence, so long as the Court is satisfied of its truth, even where the confession was retracted and he referred to the cases of Idowu v. State (2000) 7 SCNJ 245 and Oseni v. State (2012) 2 SCNJ 215. Counsel stated that it is however the practice to look outside the confession for some evidence of confirmatory circumstances and he reiterated the six tests laid down by case law authorities in dealing with confessional statements and stated that the lower Court applied the tests in the instant case and considered the confessional statement in the light of other available credible evidence and found the contents of the confessional statement to be true. Counsel stated that neither the Appellant nor his Counsel objected to the tendering of the confessional statement in the lower Court and that the Appellant made no reference to the confessional statement in the course of his testimony and did not deny making same and that the testimony of the second 15

27 prosecution witness that the Appellant made the statement voluntarily was not challenged. Counsel traversed through the story of the Respondent before the lower Court on the way and manner the Appellant and the other accused person were arrested and the investigations carried out upon the arrest as contained in the unchallenged testimony of the third prosecution witness and stated that the story corroborated the contents of the confessional statement of the Appellant. Counsel stated that the contents of the confessional statement as to the items that were stolen, the sum of N60, and two GSM handsets, were also corroborated by the testimony of the first prosecution witness. Counsel stated that the confessional statement of the Appellant was positive, possible, unequivocal and direct and it was consistent and in agreement with the contents of the confessional statements of the other co-accused persons on what transpired in the night of the robbery incident. Counsel stated that there were many independent facts outside the confessional statement confirming its truth and that the lower Court was thus right in basing the conviction of the Appellant on the 16

28 confessional statement. On the fourth issue for determination, Counsel stated that the contention of the Counsel to the Appellant that an essential element of the charge against the Appellant was not established by reason of the failure of the Respondent to conduct an identification parade for the first prosecution witness to positively identify the Appellant as one of the robbers that attacked him was misconceived. Counsel stated that an identification parade was not necessary in all cases where there was a fleeting encounter with the victim of the crime, if there are other pieces of evidence conclusively identifying the perpetuators of the crime and he referred to the case of Agboola v. State supra. Counsel stated that in the present case, there was no need for an identification parade because the Appellant made a confessional statement admitting the commission of the crime and he referred to the case of Osung v. State (2012) 6 SCNJ (Pt. II) 511. Counsel urged this Court to resolve this issue against the Appellant. Counsel concluded by urging this Court to find and hold that the Respondent proved its case against the Appellant beyond reasonable 17

29 doubt and to refuse the appeal and to affirm the judgment of the lower Court. This Court must say that reading though the judgment, the notice of appeal and the briefs of arguments of the parties in this appeal, it is of the view that there is indeed only one issue for determination in this appeal and it is: Whether the Respondent led clear, cogent and credible evidence to sustain the two count charge preferred against the Appellant and thus warrant the conviction and sentence of the Appellant by the lower Court. This appeal will be resolved on this sole issue for determination and all the arguments of Counsel to the parties shall be considered under this sole issue. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never 18

30 shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal - Sabi v. State (2011) 14 NWLR (Pt. 1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1324) 119, Njoko v. State (2013) 2 NWLR (Pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360, Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589. It must, however, be stated that proof beyond reasonable doubt is "not proof to the hilt" and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have 19

31 established its case beyond reasonable doubt - Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556 and Babarinde v. State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 All ER 372 at 373 thus: "Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable' the case is proved beyond reasonable doubt but nothing short will suffice." The charge against the Appellant before the lower Court was two counts of armed robbery. It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers - Osetola v. State 20

32 (2012) 17 NWLR (Pt. 1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt. 1358) 138, Ajayi v. State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved - Sabi v. State supra. It is settled in our law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka v. State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt. 1331) 1, Umar v. State (2014) 13 NWLR (Pt. 1425) 497. It was not in contest in this appeal that a robbery indeed took place at No. 25, Kwoi Street, Zango, Tudun Wada, Kaduna in the night of the 14th of August, 2006 at about 2:40am and during which one Auwal Zakari Alhassan and one Salisu Zakari and 21

33 members of their family were attacked and the sum of N60, and one mobile phone handset were stolen from Auwal Zakari Alhassan and the sum of N5, and one mobile phone handset were stolen from Salisu Zakari. This was the robbery for which the Appellant was charged. The first ingredient of the two count charge against the Appellant was thus accepted as proved and established. In proving the second and third ingredients of the offence of armed robbery, it is obvious from the records of appeal that the Respondent relied on the confessional statement of the Appellant in establishing the ingredients beyond reasonable doubt and that the lower Court accepted the confessional statement as being direct, positive and unequivocal and it found the Appellant guilty on the basis of the confessional statement. Now, the case of the Respondent against the Appellant and his co-accused persons in the lower Court, as contained and related in the testimonies of the three prosecution witnesses, was that in the night of the 14th of August, 2006, the Appellant in the company of four other persons, while armed with sticks, iron rods, machetes and other dangerous 22