(2016) LPELR-43753(CA)

Transcription

1 ABDULLAHI v. STATE CITATION: HUSSEIN MUKHTAR CHIDI NWAOMA UWA In the Court of Appeal In the Ilorin Judicial Division Holden at Ilorin UCHECHUKWU ONYEMENAM ON FRIDAY, 29TH JULY, 2016 Suit No: CA/IL/C.28/2015 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal UMORU ABDULLAHI - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstances where identification parade will be useful and neccessary "Identification parade becomes necessary in a case where the victim or witness did not know the accused person prior to the crime; and was in contact with the accused person for a time not long enough; and under circumstances that it would have been impossible for the victim or witness to observe special futures of the accused person to be able to identify him afterwards, see: Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43; Adebayo V. State (2014) LPELR (SC)."Per ONYEMENAM, J.C.A. (P. 19, Paras. B-D) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstance where an identification parade would not be necessary "Since the purpose of identification parade is to guard against mistaken identity of the accused person, in circumstances as in this case where the eye-witness, a victim had a good close contact in a broad day light with the accused person and for a reasonable time that she could identify the Appellant without mistake; identification parade may not be necessary. This is most importantly where as in this present case the phone of the PW1 which was one of the items allegedly robbed from her by the Appellant was found in his possession without reasonable explanation as to how he came about the phone. See Exhibit 2 (a) the Appellant's statement at the state CID."Per ONYEMENAM, J.C.A. (Pp , Paras. C-A) - read in context

3 3. CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Position of the law on the defence of alibi "The latin word alibi signifies 'elsewhere'. A person charged with a crime proves se eadem die fuisse alibi; - that he was at the time alleged, in a different place from that in which it was committed. The backdrop of the foundation laid by the defence of alibi is that the accused person could not have committed the crime. Alibi evidence lies under general prejudice and ought to be heard with uncommon caution. When founded in truth, alibi is the best negative evidence that can be offered and most times the only evidence an innocent accused person can offer. Alibi in our jurisprudence is proved by the accused person, when he at the earliest given opportunity relays to the police with specifics and exactitudes that at the time or day alleged whichever is applicable; he was at a different place which he must give a verifiable address or contact to enable police investigation. Once the accused does this, it is left for the police to dislodge this defence by investigating to show that the evidence of alibi is not true. See: Adebiyi v. State (2016) LPELR (SC); where His Lordship Nweze, J.S.C, at page 13 para D stated thus: "It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it" See also: Eyisi V. The State (2000) 4 NSCQR 60; Eke V. The State (2011) LPELR (SC) 16. Where the police fails to investigate an accused person's alibi, reasonable doubt is raised as to his guilt and such doubt must be resolved in favour of the accused person leading to his acquittal. See: Adebiyi V. The State (Supra); Yanor V.The State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu & Anor. V. The State (2001) 5 SCNJ 115. Howbeit; where the Prosecution adduces material credible evidence to fix the accused person at the scene of crime, the defence of alibi is demolished. See: Onuchukwu V. State (1998) 58 LRCN 3393; Ozaki V. The State (1990) 1 W.B.R.N. 55; Happy Kingsley Idemudia v. The State (2015) LPELR (SC). Unlike as expressed by the Appellant's counsel, in Idemudia V. The State (Supra); Ogunbiyi J.S.C referred to the case of: Onuchukwu V. State (1998) 58 LRCN 3393; where it was held that: "A plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time." The learned justice of the apex Court referred to so many other cases that followed this principle of law and said: "In the light of the foregoing authorities read together with the case of Abudu v. State (supra) the prosecution has not in my mind demolished the plea of alibi raised by the appellant. This I say because from the events on the record the only sole witness (i.e.) PW2 cannot be accorded the status of a credible witness to sustain the proof required of the prosecution. In other words, PW2 in his evidence did not identify the appellant sufficient enough or at all so as to fix him at the scene of crime conclusively." From the above, it will be correct to hold and I so hold that; where there is enough, sufficient and credible evidence adduced by the prosecution which conclusively fixes the accused person to the scene of crime at the time of the offence; failure of the prosecution to investigate the plea of alibi may not lead to the discharge and the acquittal of the accused person. This is so because by such evidence the prosecution would beheld to have dislodged or demolished the plea of alibi thereby leaving the accused person bare of the negative defence. "Per ONYEMENAM, J.C.A. (Pp , Paras. C-C) - read in context

4 4. EVIDENCE - HEARSAY EVIDENCE: Whether hearsay evidence is admissible "By Section 126 of the Evidence Act, 2011; oral evidence must be direct. This is to say: if the evidence is a fact which could be seen, heard, perceived or refers to an opinion or to the grounds on which that opinion is held; it must be evidence of a witness who saw the fact, heard the fact, perceived the fact or holds the opinion on those grounds, respectively. Oral evidence which is not at-tune with Section 126 of the Evidence Act, is adjudged hearsay evidence and inadmissible in law. The reason for the hearsay rule is to ensure a person is not accused or found guilty for an offence he did not commit. By this rule, Courts are under duty not to admit and or convict an accused person based on the testimony of a witness who did not see, hear or perceive the facts given in his testimony at a trial; This rule is sacrosanct except for where a Statute provides an exception. Accordingly, where a trial Court convicts an accused upon hearsay evidence, an appellate Court will quash the conviction, if there is no other legal evidence upon which the conviction hinges. See: Section 126 of the Evidence Act; Chima Ijioffor v. The State (2001) NWLR (pt. 718) 371; SC (pt.11) 1. In his evidence, PW2 (PC Lawal Olayiwola) stated that he was on duty at the Share Police Station when the Appellant was brought in by a policeman, PC Sunday Agbo and one commercial motorcyclist named Ahmed Yusuf along with 4 handsets amongst other items. From the record it is not in dispute that PW2 was not at the scene of arrest of the Appellant neither did he witness the arrest. PW2's role was that he took the statement of the accused. His statement as to the arrest of the Appellant and the items recovered from him at the time of his arrest was based on what PC Sunday Agbo told him. Pw2's evidence on the circumstances of the arrest and items found in possession of the Appellant at the time of his arrest is therefore not at-tune with Section 126 of the Evidence Act. I adjudge the said evidence hearsay evidence which is not admissible in law in prove of the truth of the circumstances and items in possession of the Appellant at the time of his arrest. No weight ought to be attached to that piece of evidence. I hold that the learned trial Judge in the instant case acted on a wrong principle of law when he attached weight on the piece of hearsay evidence of PW2 as to the items found in the Appellant's possession at the time of his arrest."per ONYEMENAM, J.C.A. (Pp. 8-10, Paras. D-C) - read in context 5. EVIDENCE - ADMISSIBILITY OF EVIDENCE: Whether an interpreter of a statement must be called as a witness before the statement can be admissible "One of the purposes of tendering a statement of an accused person in evidence is to establish the truth of its content and; where the statement was obtained with the help of an interpreter, both the recorder and interpreter of the statement must give evidence in Court for the statement to be admissible. Failure of the interpreter to give evidence renders the statement hearsay and inadmissible. See: FRN V. Usman (2012) 8 NWLR (pt. 1301) 141; Nwaeze v. State (1996) NWLR (pt.428) 1. Exhibit 1 was tendered through the PW2 on 25th April, It was PW2 that recorded Exhibit 1 but PC Sunday Agbo interpreted the statement of the Appellant. The interpreter PC Sunday Agbo was not called to give evidence in Court thereby rendering Exhibit 1, hearsay which is inadmissible."per ONYEMENAM, J.C.A. (P. 13, Paras. B-F) - read in context 6. EVIDENCE - ADMISSIBILITY OF EVIDENCE: Whether inadmissible evidence can be admitted by consent or collusion "The fact that Exhibit 1 was not objected to at the stage of tendering is immaterial as inadmissible document cannot be admitted by consent or failure to object at the point of tendering, See: FRN V. Usman (Supra). "Per ONYEMENAM, J.C.A. (Pp , Paras. F-A) - read in context

5 7. EVIDENCE - DOCUMENTARY EVIDENCE: Effect of an undated document "At page 43, lines 30 to 33 of the record, the Court stated: Court: "The statement of the accused dated which is undated in blue biro is admitted in evidence and marked Exhibit 2. While the 2nd one dated 23/9/2011 in black biro is admitted in evidence and marked Exhibit 2A. The learned counsel for the Respondent based on the above statement of the Court to submit that the contention of the Appellant's counsel that Exhibit 2 was undated is misconceived as he argued that; a careful reading of the record will show that what was contained therein is a typographical error because the statement is meaningless. He asked the question; if the statement was undated then what was written in blue biro? Without much ado, I have looked at Exhibit 2 which by its content is an additional statement of the Appellant made at the State CID. Exhibit 2 is neither dated nor signed. I have seen thump prints on Exhibit 2, but the same has no nexus with the Appellant as the name of the person that has the thump print is not stated. I am therefore of the view that Exhibit 2 is a worthless document since it was neither dated nor signed. Exhibit 2 has no evidential value, any attempt by the trial Court to attach any weight to it is adjudged wrong in law. See: Awolaja v. Seatrade GBV (2002) 4 NWLR (Pt. 758) 520; Abeje & Anor. V. Apeke (2013) LPELR (CA). I hereby expunge Exhibit 2 from the record."per ONYEMENAM, J.C.A. (Pp , Paras. B-C) - read in context 8. EVIDENCE - CONFESSIONAL STATEMENT: Whether a confessional statement would be rendered inadmissible because it has not been read over and confirmed before a superior police officer "Exhibit 2(a) is the statement of the Appellant made at the State CID, Kwara state on 23rd September, 2010, The recorder Sgt. Dada Segun was the same person that interpreted the statement to the Appellant. He signed both as the recorder and the interpreter. The Appellant thumb printed and his name written down as the owner of the thumb print, Exhibit 2 (a) was tendered and admitted in evidence without objection. This by implication means, both the Appellant and his counsel were comfortable with the content of the Exhibit. Accordingly, there was no suspicion. Exhibit 2 (a) was therefore an admissible document which was rightly admitted by the trial Court. The fact that the statement was not taken to a superior police officer to be countersigned goes to the weight to be attached to it. It is a good practice for an Investigating Police Officer who records a confessional statement of an accused person to have the statement counter-signed by a Superior Police Officer before the accused. This practice is to confirm the voluntariness of the statement and its accuracy. Where there is doubt as to the voluntariness or truth of a confessional statement, the absence of endorsement by a Superior Police Officer greatly affects the weight to be placed on the statement. A judge will be in error to attach probative value to such a suspicious unendorsed confessional statement by a superior police officer let alone convict based on it. However, where there is no suspicion or doubt as in this case where the statement was not objected to when the Respondent sought to tender the same at the trial Court, the decision arrived by the trial Court based on the confessional statement will not be set aside just because it lacks the superior officer's endorsement. Clearly put, the absence of the superior police officer's endorsement is not fatal to the case of the Respondent. See: Edhigere V State (1994) 8 NWLR 344; Nwigboko &ors V. The Queen (1959) 4 F.S.C101; Alarape V. The State (2001) 5 NWLR (Pt 705) 79; Bassey Dan Udo Eyop V The State 2012 LPELR (CA); Ojegele V. State (1988) NWLR (Pt. 71) 414."Per ONYEMENAM, J.C.A. (Pp , Paras. F-D) - read in context

6 9. EVIDENCE - IDENTIFICATION EVIDENCE: What the court must consider in ascribing value to the evidence of an eye-witness in identifying a criminal "In the case of: Ndidi V. State (2007) ALL FWLR (Pt.381) 1617; the apex Court held thus: "To ascribe any value to the evidence of an eye witness in the matter of identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues: a. circumstances in which the eye-witness saw the suspect or defendant b. The length of time the witness saw the subject or defendant c. The lighting conditions d. The opportunity of close observations e. The previous contacts between the two parties."per ONYEMENAM, J.C.A. (Pp , Paras. D-A) - read in context

7 UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The judgment is in respect of the appeal against the decision of T.S.Umar. J, of the High Court of Kwara State, sitting in Ilorin delivered on 18th September, In the said judgment, the trial Court convicted the Appellant of the offences of Criminal Conspiracy punishable under Section 97 of the Penal Code and Robbery punishable under Section 1 (1) of the Robbery and Firearms (Special Provisions) Act, Cap,R11, Laws of the Federation of Nigeria, The charge before the trial Court was filed against the Appellant as 1st accused person and one Abubakar Umaru as the 2nd accused person. However before their arraignment, the said Abubakar Umaru jumped bail. The learned trial Judge granted the prosecution's application to separate the trial of the Appellant from his co-accused person who was at large; whereupon the Appellant was tried under the two (2) count charge brought against him. The charge sheet read thus: COUNT ONE That you Umoru Abdullahi and Abubakar Umaru on or about the 20th day of September, 2010 at Eruku along Obbo-lle town within the 1

8 jurisdiction of this Honourable Court conspired to do an illegal act to wit: while armed you robbed one Moody Moses and other motorist along the highway and same was done in pursuance of an agreement among you with others at large and you thereby committed an offence punishable under Section 97 of the Penal Code Law. COUNT TWO That you Umoru Abdullahi and Abubakar Umaru on or about the 20th day of September, 2010 at Eruku along Obbo-lle town within the jurisdiction of this Honourable Court while armed with locally made pistol did rob one Moody Moses and other motorists of their valuable properties and cash along the highway and you thereby committed an offence contrary to Section 1(2) of the Robbery and Fire Arms (Special Provision) Act Cap R11, Laws of the Federation On 25th January, 2012, the Appellant pleaded not guilty to the above two count charge. In his trial thereafter, the prosecution called three witnesses and tendered three documents which were admitted and marked Exhibits 1, 2 and 2(a). The case of the prosecution is that on 20th September, 2010, the PW1 one Titilayo Olatayo and other motorists were robbed by armed 2

9 robbers along the highway between lloffa and Osi wherein her bag containing her handset, money and other valuables was taken at gun point. That on 22nd September, 2010 one PC Sunday Agbo with the aid of motorcyclists arrested the Appellant in possession of five handsets, charms and the sum of N58, (Fifty eight thousand naira) only. The said PC Agbo and one of the motorcyclists took the Appellant to Share Police Divisional Headquarters where PC Lawal Olayiwola (PW2) took his statement and later transferred the Appellant, the case file and the items recovered from him to the Police Headquarters, llorin. At the State CID, the investigating Police Officer (lpo), Sgt. Segun Dada (PW3), discovered that one of the handsets recovered from the Appellant had a sim. He therefore placed a call to PW1's in-law whose number was in her contact to inform PW1 to come to the Police Headquarters, llorin. The PW1 said three days after the incident, her sister in-law in Lagos called to say the police had recovered her stolen handset and that her attention was required at the police headquarters, llorin. That she later went to the police and identified her phone from amongst 3

10 the five handsets recovered from the Appellant. She also identified the Appellant as the very person who collected her bag on the day of the armed robbery. She added that the phone was released to her on bond and that she made her statement to the police. In his defence, the Appellant denied the allegation and retracted his statements. He said he was in Bene in Zamfara State on the day of incident. That he left Bene on 21st September, 2010 for Tsaragi where their cattle are. He said he was arrested at Tsaragi and there was no item with him except for the sum of N68, (sixty eight thousand naira) proceeds for the sale of his cattle. He denied carrying six handsets nor bag containing woman's cloth. At the end of trial, the learned trial Judge in a considered judgment convicted and sentenced the Appellant for the offences of Criminal Conspiracy and Robbery. Dissatisfied with the decision of the trial Court, the Appellant has appealed to this Court by a Notice of appeal filed on 16th December, 2014 with ten Grounds of appeal. Parties filed and exchanged their briefs of argument in line with the Court's rules. Thereafter, the appeal was heard 4

11 on 1st June, Mr. Teju Adigun who appeared with Miss Titilope Jonathan for the Appellant argued the appeal. He adopted and relied on the argument in the Appellant's brief filed and deemed properly filed and served on 2nd March, He urged the Court to allow the appeal, discharge and acquit the Appellant. In opposition Mr. Ayoola ldowu Akande, Assistant Chief State Counsel Ministry of Justice, Kwara State appeared with Kayode Adeleye, State Counsel; for the Respondent. Mr. Akande identified, adopted and relied on the Respondent's brief filed on 31st March, 2016 as their argument in the appeal. He urged the Court to dismiss the appeal and affirm the conviction and sentence of the trial Court. In the Appellant's brief settled by Mr. Teju Adigun, four issues were distilled from the grounds of appeal for the determination of this appeal. The four issues are: 1. "Whether the learned trial judge was right in attaching any weight to the evidence of PW2 as to the circumstances of the arrest of the Appellant. 2. Whether the learned trial judge was right in admitting Exhibits 1, 2 & 2a in evidence and attaching any probative value to 5

12 the said Exhibits. 3. Whether the learned trial judge was right in holding that there was no need for an identification parade and relying solely on the identification of the Appellant by the PW1. 4. Whether the learned trial judge was right in refusing to consider the defence of alibi even after finding that the Appellant raised the question of alibi in his statement to the police and in his evidence" On their own part, the Respondent's Counsel Mr. Ayoola ldowu Akande formulated a sole issue for the settlement of the appeal. The issue reads thus: "Whether the prosecution has established and proved beyond reasonable doubt the essential ingredients of the offences of criminal conspiracy under Section 97 Penal Code and Robbery under Section 1 of the Robbery and Firearms Act, 2004 against the Appellant." I have considered the issues as raised by both parties and it is my view that the issues raised by the Appellant are more elegant and all embracing for the determination of the dispute in the appeal. I shall therefore decide the appeal on the issues formulated by the Appellant. ISSUE 1 "Whether the learned trial Judge

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14 was right in attaching any weight to the evidence of PW2 as to the circumstances of the arrest of the Appellant." Mr. Adigun, learned counsel for the Appellant relied on Section 126 (a) and (b) of the Evidence Act, 2011 on oral evidence He submitted that since PW2 was not the Police officer that arrested the Appellant neither did he witness the arrest, his evidence as to the circumstances of the Appellant's arrest and what were in his possession at the time of his arrest is hearsay and therefore inadmissible. The learned counsel also referred to the apex Court's decision in: State V. lsah (2012) 16 NWLR (Pt. 1327) 613; as to vital witnesses required to give evidence for the prosecution in armed robbery charge, failure which serious doubt will arise as to whether the accused person really committed the offence, He submitted that in this case where the police officer that arrested the Appellant did not give evidence and there is no credible evidence before the Court of the circumstances in which the accused was arrested nor what were found in his possession at the time of his arrest, the trial Court was wrong in its conclusion that the Appellant 7

15 was guilty of robbery. Mr. Adigun urged the Court to resolve the issue in the negative and in favour of the Appellant. Mr. Akande for the Respondent in opposition invited the Court to note that PW2 was not cross-examined by the Appellant's counsel at the trial Court. He submitted that the evidence of PW2 as a police officer who took part in the investigation and recorded the statement of the Appellant is admissible evidence. He urged the Court to resolve the issue in the affirmative in favour of the Appellant. RESOLUTION OF ISSUE 1 By Section 126 of the Evidence Act, 2011; oral evidence must be direct. This is to say: if the evidence is a fact which could be seen, heard, perceived or refers to an opinion or to the grounds on which that opinion is held; it must be evidence of a witness who saw the fact, heard the fact, perceived the fact or holds the opinion on those grounds, respectively. Oral evidence which is not at-tune with Section 126 of the Evidence Act, is adjudged hearsay evidence and inadmissible in la. The reason for the hearsay rule is to ensure a person is not accused or found guilty for an offence he did not commit. By 8

16 this rule, Courts are under duty not to admit and or convict an accused person based on the testimony of a witness who did not see, hear or perceive the facts given in his testimony at a trial; This rule is sacrosanct except for where a Statute provides an exception. Accordingly, where a trial Court convicts an accused upon hearsay evidence, an appellate Court will quash the conviction, if there is no other legal evidence upon which the conviction hinges. See: Section 126 of the Evidence Act; Chima Ijioffor v. The State (2001) NWLR (pt. 718) 371; SC (pt.11) 1. In his evidence, PW2 (PC Lawal Olayiwola) stated that he was on duty at the Share Police Station when the Appellant was brought in by a policeman, PC Sunday Agbo and one commercial motorcyclist named Ahmed Yusuf along with 4 handsets amongst other items. From the record it is not in dispute that PW2 was not at the scene of arrest of the Appellant neither did he witness the arrest. PW2's role was that he took the statement of the accused. His statement as to the arrest of the Appellant and the items recovered from him at the time of his arrest was based on what PC Sunday Agbo told him. Pw2's 9

17 evidence on the circumstances of the arrest and items found in possession of the Appellant at the time of his arrest is therefore not at-tune with Section 126 of the Evidence Act. I adjudge the said evidence hearsay evidence which is not admissible in law in prove of the truth of the circumstances and items in possession of the Appellant at the time of his arrest. No weight ought to be attached to that piece of evidence. I hold that the learned trial Judge in the instant case acted on a wrong principle of law when he attached weight on the piece of hearsay evidence of PW2 as to the items found in the Appellant's possession at the time of his arrest, therefore resolve issue 1 in the negative and in favour of the Appellant. ISSUE 2 "Whether the learned trial judge was right in admitting Exhibits 1, 2 & 2(a) in evidence and attaching any probative value to the said Exhibits. Mr. Teju Adigun, learned counsel for the Appellant referred to the apex Court's decisions in: Omega Bank (Nig) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (pt. 928) 547; F. R. N. V. Usman (2012) 8 NWLR (pt. 1301) 141; to submit that the Court can only act on legally 10

18 admissible evidence; that a Court has no discretion to admit inadmissible evidence even where the parties consent to it. The learned counsel contended that the trial Court was wrong to have received Exhibits 1, 2 & 2 (a) in evidence without considering whether they were documents admissible in law. He noted that the trial Court admitted and acted on the referred exhibits solely on the basis that they were tendered without objection. On Exhibit 1, Mr. Adigun submitted that since the interpreter of the statement was not called to give evidence, Exhibit 1 is a documentary hearsay which is not admissible in law. He cited: Nwaeze V. State (1996) NWLR (Pt.428) 1, FRN V. Usman (supra). On Exhibit 2, the learned counsel submitted that the same was a worthless document as it was not dated. He relied on: Udo V. Essien (2014) LPELR (CA); Global Soaps & Detergent Ind. Ltd. v. NAFDAC (2011) LPELR (CA). He urged the Court to expunge Exhibit 2 from the record. On Exhibit 2 (a), he equally submitted that it was a worthless document because the thumbprint on it has no nexus with the Appellant. Also, that the said exhibit does not bear

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20 either the name or signature of the recorder or interpreter. He distinguished the present case from the case of: Nwachukwu v. The State (2007) ALL FWLR (pt. 3901) 1411; relied upon by the trial Court. He finally urged the Court to resolve issue 2 in the negative and in favour of the Appellant. In opposition, Mr, Ayoola ldowu Akande in the Respondent's brief contended that the exhibits under attack are not inadmissible evidence in law. He submitted that since Exhibits 1, 2 & 2(a) were voluntarily made; they are legally admissible evidence which could ground the conviction of the Appellant. He cited:state v. Rabiu (2013) ALL FWLR (Pt. 684) 36. The learned counsel invited the Court to page 43, paragraph 5 of the record to submit that the argument of the Appellant's counsel on Exhibit 2 is misconceived. He further added that even when held that the Exhibits have no probative value, there are sufficient evidence to convict the Appellant. He relied on: Archibong v. State (2006) ALL FWLR (323) He urged the Court to resolve the issue in favour of the Respondent. RESOLUTION OF ISSUE 2 Let me start by stating that Mr. Ayoola

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22 ldowu Akande, for the Respondent, conceded to the fact that an inadmissible document cannot be admitted with the consent of the parties. Accordingly, if the Exhibits under attack are found to be inadmissible evidence, then it follows that the trial Court was wrong to have admitted them in evidence. The said Exhibits will be expunged from the record. One of the purposes of tendering a statement of an accused person in evidence is to establish the truth of its content and; where the statement was obtained with the help of an interpreter, both the recorder and interpreter of the statement must give evidence in Court for the statement to be admissible. Failure of the interpreter to give evidence renders the statement hearsay and inadmissible. See: FRN V. Usman (2012) 8 NWLR (pt. 1301) 141; Nwaeze v. State (1996) NWLR (pt.428) 1. Exhibit 1 was tendered through the PW2 on 25th April, It was PW2 that recorded Exhibit 1 but PC Sunday Agbo interpreted the statement of the Appellant. The interpreter PC Sunday Agbo was not called to give evidence in Court thereby rendering Exhibit 1, hearsay which is inadmissible. The fact that Exhibit 1 was not 13

23 objected to at the stage of tendering is immaterial as inadmissible document cannot be admitted by consent or failure to object at the point of tendering, See: FRN V. Usman (Supra). I therefore hold that Exhibit 1 is inadmissible, it was wrongly admitted by the trial Court. Exhibit 1 is expunged from the record. At page 43, lines 30 to 33 of the record, the Court stated: Court: "The statement of the accused dated which is undated in blue biro is admitted in evidence and marked Exhibit 2. While the 2nd one dated 23/9/2011 in black biro is admitted in evidence and marked Exhibit 2A. The learned counsel for the Respondent based on the above statement of the Court to submit that the contention of the Appellant s counsel that Exhibit 2 was undated is misconceived as he argued that; a careful reading of the record will show that what was contained therein is a typographical error because the statement is meaningless. He asked the question; if the statement was undated then what was written in blue biro? Without much ado, I have looked at Exhibit 2 which by its content is an additional statement of the Appellant made at the State 14

24 CID. Exhibit 2 is neither dated nor signed. I have seen thump prints on Exhibit 2, but the same has no nexus with the Appellant as the name of the person that has the thump print is not stated. I am therefore of the view that Exhibit 2 is a worthless document since it was neither dated nor signed. Exhibit 2 has no evidential value, any attempt by the trial Court to attach any weight to it is adjudged wrong in law. See: Awolaja v. Seatrade GBV (2002) 4 NWLR (Pt. 758) 520; Abeje & Anor. V. Apeke (2013) LPELR (CA). I hereby expunge Exhibit 2 from the record. Now to Exhibit 2(a), the Appellant's counsel contended that it is a mere worthless document in that the name and signature of the recorder and interpreter are not reflected. He added that the Exhibit merely had some thump prints without indicating whose thump prints they were. He equally relied on the case of: Ebierim Onianwa v. The State (2015) LPER (CA); to submit that the learned trial Judge erred by not adverting his mind to the absence of endorsement by a superior police officer on the Exhibits. Exhibit 2(a) is the statement of the Appellant made at the State CID, 15

25 Kwara state on 23rd September, 2010, The recorder Sgt. Dada Segun was the same person that interpreted the statement to the Appellant. He signed both as the recorder and the interpreter. The Appellant thumb printed and his name written down as the owner of the thumb print, Exhibit 2 (a) was tendered and admitted in evidence without objection. This by implication means, both the Appellant and his counsel were comfortable with the content of the Exhibit. Accordingly, there was no suspicion. Exhibit 2 (a) was therefore an admissible document which was rightly admitted by the trial Court. The fact that the statement was not taken to a superior police officer to be counter-signed goes to the weight to be attached to it. It is a good practice for an Investigating Police Officer who records a confessional statement of an accused person to have the statement counter-signed by a Superior Police Officer before the accused. This practice is to confirm the voluntariness of the statement and its accuracy. Where there is doubt as to the voluntariness or truth of a confessional statement, the absence of endorsement by a Superior Police Officer greatly affects the 16

26 weight to be placed on the statement. A judge will be in error to attach probative value to such a suspicious unendorsed confessional statement by a superior police officer let alone convict based on it. However, where there is no suspicion or doubt as in this case where the statement was not objected to when the Respondent sought to tender the same at the trial Court, the decision arrived by the trial Court based on the confessional statement will not be set aside just because it lacks the superior officer's endorsement. Clearly put, the absence of the superior police officer's endorsement is not fatal to the case of the Respondent. See: Edhigere V State (1994) 8 NWLR 344; Nwigboko &ors V. The Queen (1959) 4 F.S.C101; Alarape V. The State (2001) 5 NWLR (Pt 705) 79; Bassey Dan Udo Eyop V The State 2012 LPELR (CA); Ojegele V. State (1988) NWLR (Pt. 71) 414. I therefore hold the view that the learned trial judge in the circumstances of the case was right in attaching probative value to Exhibit 2 (a). Issue 2 is partially but substantially resolved in favour of the Respondent. ISSUE 3 "Whether the learned trial judge was right in 17

27 holding that there was no need for identification parade and relying solely on the identification of the Appellant by PW1" Mr. Teju Adigun, learned counsel for the Appellants submitted that the legal principle is that an identification parade is necessary in cases where the victim or the witness did not know the accused person before the date of the alleged offence. He relied on: Ndukwe V The State (2009) 7 NWLR (Pt.1139) 43; Adebayo V The State (2014) LPELR He added that in the absence of identification parade, the evidence of pw1 fixing the Appellant at the crime scene is not reliable. The learned counsel further referred to the case of lkano V. State (1973) 5 S.C.167, where the Supreme Court over-turned the conviction of the Appellants because there was no proper identification of the Appellant's in view of their defence of alibi. He noted that the Appellant raised the sole defence of alibi and it was the PW1 alone who identified him. He urged the Court to expunge the identification evidence of PW1 for the failure of the prosecution to conduct a proper 18

28 identification parade. Mr. Ayoola ldowu Akande, for the Respondent, submitted that the learned trial Judge was right to hold that in the circumstances of the case, identification parade was not necessary, RESOLUTION OF ISSUE 3 Identification parade becomes necessary in a case where the victim or witness did not know the accused person prior to the crime; and was in contact with the accused person for a time not long enough; and under circumstances that it would have been impossible for the victim or witness to observe special futures of the accused person to be able to identify him afterwards, see: Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43; Adebayo V. State (2014) LPELR (SC). In the case of: Ndidi V. State (2007) ALL FWLR (Pt.381) 1617; the apex Court held thus: "To ascribe any value to the evidence of an eye witness in the matter of identification of a criminal, the Courts in guarding against cases of mistaken identity must meticulously consider the following issues: a. circumstances in which the eye-witness saw the suspect or defendant b. The length of time the witness saw the subject or defendant

29 c. The 19

30 lighting conditions d. The opportunity of close observations e. The previous contacts between the two parties. In the instant appeal, the Pw1 who was one of the victims of the incident of robbery gave evidence that at about 12 noon while they were in an 18-seater bus en-route llorin; between lloffa and Osi, about 7 armed robbers came out from the bush and attacked them. That she was sitting directly behind the driver of the bus. That the armed robbers distributed themselves amongst the passengers in the bush and were collecting their items. That it was the Appellant that collected her handbag which contained amongst other things, her handset and money. By this evidence which was not challenged nor discredited under cross examination; the armed robbers stopped them, took them into the bush, distributed themselves amongst the passengers and then robbed them. There is no evidence that the armed robbers were masked or the passengers were asked to lie face down to avoid having a good look at the armed robbers. The Pw1 who was sitting directly behind the driver would have been amongst the first persons to come down from the vehicle. She 20

31 would have had the opportunity to have a good look at the armed robbers. There is no evidence that the PW1 was under panic not to observe the Appellant whom she stood before for him to collect the items of the passengers assigned to him one after the other. It was also not disputed that the crime took place in the day time where there was no lighting inhibition. I am of the strong view that in the circumstances of the robbery and for the period of time the PW1 was in contact with the Appellant she was in a position to rightly identify the Appellant. Since the purpose of identification parade is to guard against mistaken identity of the accused person, in circumstances as in this case where the eye-witness, a victim had a good close contact in a broad day light with the accused person and for a reasonable time that she could identify the Appellant without mistake; identification parade may not be necessary. This is most importantly where as in this present case the phone of the PW1 which was one of the items allegedly robbed from her by the Appellant was found in his possession without reasonable explanation as to how he came about the phone. See Exhibit 2 21

32 (a) the Appellant's statement at the state CID. Accordingly, Exhibit 2 (a) and the evidence of PW1 properly identified the Appellant as one of the robbers who robbed PW1 and other passengers between lloffa and Osi on 20th September, I am therefore of the firm view that the learned trial Judge was right when he held that identification parade Was not necessary in the circumstances of this case. I resolve issue no. 3 in favour of the Respondent. ISSUE 4 "Whether the learned trial Judge was right in holding that the question of alibi did not arise in this case?" Mr. Adigun learned counsel for the Appellant submitted that since the Appellant at the earliest opportunity raised the defence of alibi, the said alibi having not been investigated by the police, doubt is raised as to the guilt of the Appellant and the said doubt ought to have been resolved in favour of the Appellant leading to his discharge and acquittal. He cited: Idemudia v. State (2015) LPELR (SC); Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538; Ozaki v. State (1990) 1. NWLR (Pt.124) 92; Alhaji Musa Sani v. State (2015) LPELR (SC). He urged the Court 22

33 to resolve the issue in favour of the Appellant. Mr. Akande the Assistant Chief State Counsel for the Respondent in response simply stated that the defence of alibi by the Appellant cannot hold water in view of the superior evidence before the Court pointing to the fact that it was the Appellant that robbed PW1 and other occupants of the bus on the alleged day of incident. He urged the Court to resolve the issue in favour of the Respondent. RESOLUTION OF ISSUE 4 The latin word alibi signifies 'elsewhere'. A person charged with a crime proves se eadem die fuisse alibi; - that he was at the time alleged, in a different place from that in which it was committed. The backdrop of the foundation laid by the defence of alibi is that the accused person could not have committed the crime. Alibi evidence lies under general prejudice and ought to be heard with uncommon caution. When founded in truth, alibi is the best negative evidence that can be offered and most times the only evidence an innocent accused person can offer. Alibi in our jurisprudence is proved by the accused person, when he at the earliest given opportunity relays to the police with 23

34 specifics and exactitudes that at the time or day alleged whichever is applicable; he was at a different place which he must give a verifiable address or contact to enable police investigation. Once the accused does this, it is left for the police to dislodge this defence by investigating to show that the evidence of alibi is not true. See: Adebiyi v. State (2016) LPELR (SC); where His Lordship Nweze, J.S.C, at page 13 para D stated thus: "It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the prosecution to investigate it" See also: Eyisi V. The State (2000) 4 NSCQR 60; Eke V. The State (2011) LPELR (SC) 16. Where the police fails to investigate an accused person s alibi, reasonable doubt is raised as to his guilt and such doubt must be resolved in favour of the accused person leading to his acquittal. See: Adebiyi V. The State (Supra); Yanor V.The State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu & Anor. V. The State (2001) 5 SCNJ 115. Howbeit; where the Prosecution adduces material credible evidence to fix the 24

35 accused person at the scene of crime, the defence of alibi is demolished. See: Onuchukwu V. State (1998) 58 LRCN 3393; Ozaki V. The State (1990) 1 W.B.R.N. 55; Happy Kingsley Idemudia v. The State (2015) LPELR (SC). Unlike as expressed by the Appellant's counsel, in Idemudia V. The State (Supra); Ogunbiyi J.S.C referred to the case of: Onuchukwu V. State (1998) 58 LRCN 3393; where it was held that: A plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time." The learned justice of the apex Court referred to so many other cases that followed this principle of law and said: "In the light of the foregoing authorities read together with the case of Abudu v. State (supra) the prosecution has not in my mind demolished the plea of alibi raised by the appellant. This I say because from the events on the record the only sole witness (i.e.) PW2 cannot be accorded the status of a credible witness to sustain the proof required of the prosecution. In other words, PW2 in his evidence did not identify the appellant sufficient enough or at all so as to fix 25

36 him at the scene of crime conclusively. From the above, it will be correct to hold and I so hold that; where there is enough, sufficient and credible evidence adduced by the prosecution which conclusively fixes the accused person to the scene of crime at the time of the offence; failure of the prosecution to investigate the plea of alibi may not lead to the discharge and the acquittal of the accused person. This is so because by such evidence the prosecution would beheld to have dislodged or demolished the plea of alibi thereby leaving the accused person bare of the negative defence. In the instant appeal, I held while resolving issue No. 2 that the PW2 an eye-witness in the circumstances of the case was rightly held to have been in a position to identify the Appellant without identification parade. I also came to the conclusion that her evidence and Exhibit 2(a) credibly established that it was the Appellant and the others at large that robbed the PW2 and the rest of the bus passengers at the date of incident. With such conclusions earlier made, the subsequent conclusion that can follow is the fact that the evidence adduced by the 26

37 prosecution at the trial Court was credible and conclusive enough to fix the Appellant at the scene of the crime for which he was convicted by the trial Court. It is therefore my view that the absence of the investigation of the plea of alibi raised by the Appellant by the police did not occasion a miscarriage of justice given the circumstances of the case. Again, the alibi raised by the Appellant is that he was at Bene Village in Zamfara State on the date of incident. He stated also that he has no specific home address. See: Exhibit 2(a) To say the least, the Appellant's alibi is bereft of the necessary particulars so that it is only a magician who can investigate such an alibi. Unfortunately the Nigerian police force lacks officers trained in that field, little wonder they could not embark on the investigation of the Appellant's alibi. l hold that without the details required to enable the police investigate the alibi, there was no burden on the prosecution to investigate the Appellant's alibi. l therefore agree with the learned trial Judge that the defence of alibi did not arise in this case. I resolve issue no. 4 positively and in favour of the 27

38 Respondent. Having so resolved the issues, I hold that the appeal fails and is accordingly dismissed. I affirm the conviction and sentence of the Appellant as entered by the High Court of Kwara State in case No: KWS/42C/2011; delivered on 18th September, HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother Uchechukwu Onyemenam JCA just delivered. I agree with the reasons for the conclusion that the appeal is without merit and deserves to be dismissed. I hereby dismiss the appeal and subscribe to the orders made in the judgment. CHIDI NWAOMA UWA, J.C.A.: I have read the judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with the reasoning and conclusion arrived at in dismissing the appeal. I adopt same as mine. I also dismiss the appeal for lacking in merit. 28

39 Appearances: Teju Adigun with him, Titilope Jonathan (Miss) For Appellant(s) Ayoola Idowu Akande (ACSC, MOJ Kwara State) with him, Kayode Adekeye (SC) For Respondent(s)