ADESOYE v. THE STATE (2018)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of February, 2018

CA/IL/C.57/2017

Before Their Lordships

CHIDI NWAOMA UWA  Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA  Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO  Justice of The Court of Appeal of Nigeria


Between

TOPE ADESOYE-Appellant

AND

THE STATE-Respondent

…………………….A…………………….

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Kwara State, delivered by Folayan J. on 16th March 2016 in Case No KWS/7C/2015, convicting the appellant of conspiracy to commit armed robbery and committing armed robbery. That Court also imposed the mandatory death sentence on appellant following his conviction.
The case of the prosecution/State, which it led through eight witnesses before the trial High Court, is that the appellant, who admittedly once lived in Omu-Aran town in Kwara State and had even worked for Mrs. Ogundipe (P.W.4) in that town in the past as a block moulder, in company of two other persons, on the 5th day of September 2014, stormed the home of the Ogundipes while armed with locally made pistols, initially pretended to be visitors and later forced their way in by brandishing their guns at Lydia Olaoye (P.W.7) who came to answer them at the gate. Upon gaining entrance to the house, appellant and his gang made the Ogundipes daughters to lie down, tied their hands and mouth with cellotape, attempted to rape them and finally robbed the Ogundipes of money and other valuables particularly the sales from their fuelling station of that day. Luck ran out of appellant and one member of his gang when the taxi cab of P.W.2 (Mr. Rasheed Azeez) in which they were travelling back to Ilorin on the following day was stopped by a team of policemen led by P.W.6, and, upon routine search of a sack which appellant claimed as his, two cut-to-size single barrel guns, nine (9) cartridges and some charms were found. Also recovered from the person of the appellant during the search was a huge sum of money, the amount of which the police and appellant were not in agreement, with appellant claiming it was 200,000.00 while the police maintain it was only 88,000.00. Appellant’s colleague jumped into the bush and ran away but the policemen were able to arrest appellant, the driver of the vehicle and one other passenger, all of whom they took to their station in Ilorin and detained. Three days later, appellant led the police to the very house of the Ogundipes in faraway Omu-Aran where the robbery operation took place. At the home of the Ogundipes, their daughters, including PW7, and Mrs. Ogundipe’s mother, Felicia Ajiboye (P.W.3) who were all eyewitnesses to the robbery all promptly identified appellant to the police as one of the robbers, while declaring the taxi driver, P.W.2, and the third person brought with them innocent. Mrs. Ogundipe (P.W.4) who was at home that day said appellant even called her and asked her if she didn’t recognize him again? He also confessed, according to her, that he and his co-robbers had shared their loot from her house but the police had collected his own share.
On their return to Ilorin from Omu-Aran, it was the evidence of the prosecution, appellant took the police to another house in Ilorin which he said was the residence of his run-away partner in crime, but met the house empty as his said partner had apparently packed out of the said house.
It is necessary to mention, too, that the taxi driver, P.W.2, testified at the trial, without challenge from appellant, that appellant confessed to him in detention that he and his two other colleagues at large actually robbed the Ogundipes and appellant even apologized to him (P.W.2) for putting him through the ordeal of arrest and detention.
In the course of the prosecution’s case, a trial within trial was ordered to test the voluntariness of the extra judicial statement made by appellant to the police. At the end of the said trial within trial, the trial judge ruled that the statement was not made voluntarily by appellant and rejected it.
In his defence, appellant confirmed Mrs. Ogundipe’s assertion that he was a block molder before his arrest. He also admitted working for Mrs. Ogundipe in the past as block molder. He however denied robbing the Ogundipes and rather claimed he was coming back to Ilorin from Otun-Ekiti with his share of group contribution of 200,000.00 received from his wife when the vehicle he boarded was stopped and searched by policemen in the course of which he also admitted one male passenger ran away. Two Hundred Thousand Naira (200,000.00) he also admitted was found in his person by the police following which they were taken to the police station and detained. He admitted too that himself, the taxi driver and one other were taken to Omu-Aran by the police some days thereafter, but claimed the police just took them to one house and asked the occupants to

…………………….B…………………….

identify them as the robbers. None of the occupants, he maintained, could identify them; rather, they even declared categorically that they didn’t see him or any of the others among the persons that robbed their house. He admitted, however, that Mrs. Ogundipe (P.W.4) was among the occupants of the said house and she confirmed that he had worked for her before. After the search, the policemen, he said, told him that they were returning to Ilorin and he insisted they go to Otun-Ekiti to confirm his alibi but they refused.
Under cross-examination, appellant denied having anything to do with the weapons the police claimed they recovered from him which they also tendered in evidence.
In his final address through his counsel, appellant raised among others the issue of failure of the police/prosecution to: (1) investigate his witness-box alibi of collecting money and coming innocently from Otun-Ekiti on the day of the robbery when he was arrested and, (2) to conduct identification parade given the fleeting nature, in his view, of the P.W’s 3 and 7 interaction with the robbers and the fact that they were said to have been made to lie down during the robbery.
In her final judgment of 16th March 2016, His Lordship Folayan J. did not see any substance in those submissions or any other one for that matter and convicted the appellant of the two offences of conspiracy to rob with arms and committing the substantive offence of armed robbery on this note:
The evidence of PW2, PW4, PW5, PW6, PW7 and PW8 stand unchallenged. The evidence of these witnesses that 3 people carried out the alleged robbery in question is overwhelming and there is need for the accused person to provide evidence in defence of the prosecution evidence above.
It is not by accident or coincidence that 3 people met at the gate of the Ogundipes demanding for the whereabouts of daddy and mummy, led PW7 Lydia Olaoye inside with a gun pointed to her neck, two of them entering the room, searched, found a sum of 646, 000. 00 and left with the money at the same time. The evidence of PW7 in this regard is cogent and germane. An inference of conspiracy can be drawn from this.
Coming to the submission that identification parade was necessary and failure to conduct it was fatal to the prosecution’s case, His Lordship took into account the evidence before her and dismissed it too on this note:
With the evidence of PW3 and PW7 I have no doubt in my mind that a formal identification parade at the Police station is not necessary to settle the issue of identity of this accused.
PW7 from her evidence stated above had sufficient time and interaction with the robbers that leave (sic) no one in doubt if she can recognize the robbers. The evidence before the Court is that 3 suspects, the accused, the taxi driver and the passenger arrested together were taken to the Ogundipes house at Omu-Aran and only this accused was identified by PW3 and PW7 as being one of the robbers that came to their house.
The accused person having personally led the police to the house of the family where he and the other 2 people at large robbed, it is my view and I so hold that there is no need for a formal identification parade. The accused had by his confession identified himself and PW3 and PW7 merely authenticated the identification.
PW3 in her evidence that was not challenged also said she knows this accused before the day of incident and at a point when the robbers wanted to rape the girls, she stood up and told them to take her life instead, it was at this point that she recognized this accused as somebody she has been seeing in Omu-Aran.
Regarding the defence of alibi put forward by appellant for the first time in the witness box, His Lordship had this to say:
On the evidence of the accused that on the day of their arrest he was coming from Otun-Ekiti where he went to collect his contribution, this evidence appears like an alibi but it is not.
And after holding that in any case, the appellant had sufficient time to commit the robbery on his way to Ilorin assuming his claim of coming from Otun-Ekiti is even correct, His Lordship held that there was sufficient evidence pinning appellant to the scene of crime thus demolishing his so-called alibi. His Lordship held as follows:
Admittedly (sic) that the police has a duty to investigate an alibi disclosed, but the defence of alibi has been demolished by the totality of the evidence before the

…………………….D…………………….

Court. The evidence of the accused shows that one has to pass through Omu-Aran when going to Ilorin from Otun-Ekiti or from Otun-Ekiti to Ilorin. . The strength of accused’s evidence constituting the alibi is so weak and porous compared to the strong and cogent evidence of the prosecution fixing this accused at the scene of crime coupled with accused’s oral confession which has crumbled.
I hold in this case that even despite the fact that the police did not go to Otun-Ekiti to verify the claim of the accused, there are cogent, credible, overwhelming and compelling evidence before the Court to disprove the defence of alibi of the accused. I therefore reject the defence of alibi of the accused.
The appellant is of the view that this judgment is wrong. He still believes that the prosecution did not prove its case against him beyond reasonable doubt; that there was actually a case of mistaken identity so there was not only need for a formal identification parade, the failure of the police to investigate his alibi was also fatal to the prosecution’s case hence this appeal which he hinged on six grounds.
From his six grounds appellant formulated, duplicitously, the following five issues for determination in his brief of argument prepared and filed by Taiye Oniyide Esq. and five other lawyers:
1. Whether the learned trial judge was right when he convicted the appellant for the offence of criminal conspiracy.
2. Whether the learned trial judge was right when he convicted and sentenced the appellant to death for the offences of conspiracy and armed robbery contrary to Section 6(6) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004 without identification parade as required by law.
3. Whether the learned trial judge was right when he disregarded the defence of alibi raised by the appellant.
4. Whether the learned trial judge was right when he convicted the appellant for the offence of armed robbery punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.
5. Whether the learned trial judge was right when he relied on the respondent’s weak, unsubstantiated and 
unproven evidence to convict and sentence the appellant to death.
These five issues were adopted by the Learned Solicitor-General of Kwara State, Mrs. Funsho D. Lawal, in the brief of argument she filed for the respondent.
Arguing issue 1 of proof of conspiracy, counsel to appellant first observed that neither of the two other persons at large (one of whom counsel identified in appellant’s brief as Laye) who were alleged to have conspired and committed the crimes with appellant was found or arrested let alone tried and to that extent, appellant was charged with having conspired with unknown persons. He pointed out that appellant denied the charges against him. And curiously sounding as if he was with appellant on the 5th day of September 2014 when the robberies were said to have taken place, counsel argued (at para 5.1.6. of appellant’s brief of argument) that appellant’s denial was not just for the sake of denying but represents the actual position of things. There was no evidence of agreement between the appellant and the other two persons at large, counsel further argued. Conceding that the offence of conspiracy can be inferred from circumstantial evidence provided such circumstantial evidence is direct, unequivocal and point irresistibly to the inference that appellant committed the crime in issue, counsel argued that there was no such evidence in this case so the learned trial judge was wrong to conclude and draw the inference as she did that appellant conspired with two other persons at large to rob the Ogundipes.
In her response, the learned Solicitor-General of Kwara State countered that conspiracy can be inferred from the circumstances of the case and submitted that there was overwhelming evidence on record which pointed unequivocally to the appellant???s complicity in conspiring with the two other persons at large to rob the Ogundipes so the learned trial Judge was right in her conclusion.
On issue 2 of the need for identification parade, learned counsel to appellant submitted that, given that appellant was not arrested at the scene of crime and the victims had only a short time to observe the features of the robbers, coupled with fact that they were even made to face down at some point during the robbery, there was need to conduct an

…………………….E…………………….

identification parade, for which he cited Okanlawon v. The State (2015) 17 NWLR (PT 1489) 445 @ 473 -474among other cases.
In response, the learned Solicitor-General argued that an identification parade only becomes necessary where the arrest and circumstances of the case is based on suspicion, as opposed to prompt identification by the victims immediately after the commission of the offence as the evidence in this case suggested. She cited the same pieces of evidence as the trial judge in urging us to hold that a formal identification parade was totally unnecessary in this case.
On issue 3 of whether the learned trial judge was right in disregarding appellant’s defence of alibi, Mr Oniyide for appellant submitted that once an accused person sets up a defence of alibi the prosecution has a burden to disprove it while the accused person has no similar burden to establish his alibi, for which counsel cited Iregu v. The State (2013) 12 NWLR (PT 1367) 92 @ 128-129 among a host of other cases. A conviction on an alibi that was not properly investigated, counsel argued, is bound to be quashed on appeal, citing Amodu v. The State (2010) 2 NWLR (PT 1177) 42 @ 80 para G among others cases.
Learned Solicitor-General countered that an alibi to be properly in issue must be raised at the earliest opportunity by the accused person in his statement to police to enable them investigate it, which, she further submitted, was not the case here as appellant only raised it in his evidence in Court. In any event, she further argued, where there is credible evidence fixing the accused person to the scene of crime, the failure to investigate an alibi, even when properly raised, is not fatal to a conviction. That evidence, she submitted, was aplenty in this case even from the appellant who on his own led the police to the scene of crime at Omu-Aran upon his arrest and was identified by the victims promptly there.
On issue 4 of whether the learned trial judge was right in convicting the appellant for armed robbery, Mr. Oniyide set out the elements of the offence of armed robbery, namely that there was a robbery incident, that the robbery was an armed robbery, and that the accused participated in it. Counsel argued that the prosecution failed to prove these elements; that no one was able to prove that the two cut-to-size short guns (Exhibits 1 and 1A) and the cartridges (Exhibit 2) belonged to appellant. Counsel further submitted that appellant in evidence denied participating in the robbery yet no concrete evidence was adduced by the prosecution to prove his participation.
The State represented by the Solicitor-General disagreed and argued that it proved the participation of the appellant in the robbery beyond reasonable doubt and the trial judge was right in so holding. Counsel pointed to the pieces of evidence before the Court as cited by the learned trial judge and urged us to resolve this issue against appellant.
On issue 5, counsel for appellant argued that the learned trial judge relied on weak, unsubstantiated and unproven evidence to convict the appellant. For this submission counsel cited the evidence of the Exhibit keeper (PW1) to the effect that the police did not carry out a ballistic examination on the gun alleged to have been used for the robbery. Counsel also cited the admission of PW3, Felicia Ajiboye (the granny who witnessed the robbery) who also admitted that they were made to lie face down during the robbery and the robbers were not  arrested at the scene of crime. He cited, too, Mrs. Deborah Ogundipe’s (PW4) admission that she did not physically witness the robbery, that all she related to the Court was what she was told by others. Counsel also referred us to PW4’s husband, Engineer John Taiwo Ogundipe ((PW5) admission that his evidence in Court is what he was told and so hearsay. Counsel also cited the evidence of PW6, Police Inspector Francis Audu, that he only arrested the appellant and handed him over to the investigating Police officer PW8. He also argued that PW7, Lydia Laoye who claimed to have been an eye witness of the crime contradicted herself as to the exact time the robbery took place in the evening of 05/09/2014 and the extent to which they were tied cellotape by the robbers during the operation. PW8, the Investigating Police Officer, counsel said did not even take part in the arrest of appellant, even his evidence of the oral confession was hearsay, the extra judicial statement he took from appellant was even rejected. Counsel finally submitted that the trial judge was wrong in convicting the appellant in the face of these contradictory, inconsistent and

…………………….F…………………….

unsubstantiated evidence of the prosecution. A miscarriage of justice was caused the appellant, he submitted, so we should intervene and discharge and acquit him.
On her part, learned Solicitor-General argued that the State proved its case against appellant beyond reasonable doubt. Proof beyond reasonable doubt, it was further argued, is not proof beyond all shadow of doubt as otherwise society would be in jeopardy, for which counsel cited the dictum of Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 ALL E.R. 371 @ 373. Proof of a case, she then argued, could be by confessional statement, circumstantial evidence, or eyewitness evidence and the three need be conjunctive as one method is enough. She submitted that there were no contradictions or inconsistencies in the case of the prosecution, which she further argued proved the complicity of the appellant. Learned Solicitor-General urged us to dismiss the appeal and affirm the decision of the trial Judge.
Resolution of issue(s)
I have earlier observed that appellant was rather duplicitous in framing the issues for determination. I think the one and only true issue arising for determination in this appeal is simply whether the prosecution proved against the appellant beyond reasonable doubt the offences of conspiracy to commit robbery and commission of armed robbery and the trial judge right to so hold. That sole issue encompasses the questions of proof of each of the two offences which appellant separately framed for each offence in issues 1 and 4. Also covered by that sole issue is the effect of the alleged need for formal identification parade and failure to investigate defence of alibi put up by appellant, both of which if actually made out and shown to be necessary but overlooked would mean that the charges were not proved beyond reasonable doubt against the appellant so his conviction wrongful. Same goes for issue 5 where appellant asked whether the learned trial judge did not rely on weak, unsubstantiated and unproven evidence from the prosecution to convict him; for that contention is also tantamount to saying that the two offences were not proved beyond reasonable doubt, as proof beyond reasonable doubt cannot be said to have been met where the evidence on which it is founded is weak, unsubstantiated and unproven.
It is therefore on the sole issue of whether the prosecution proved against the appellant beyond reasonable doubt the offences of conspiracy to commit robbery and commission of armed robbery and the trial judge right to so hold that I shall determine this appeal.
I shall even go further to say that the main complaint and defence of the appellant in the lower Court and here is all about mistaken identity; that is, that he, appellant, was not among the persons who robbed the Ogundipes on 05/09/2014, that he was rather elsewhere (alibi) that day and the prosecution witnesses who by their admission saw the robbers for not too long are mistaking him for one of the robbers so a formal identification parade ought to have been conducted for them to test their recollection. Incidentally, mistaken identity is one of the two, or three, broad defences in a criminal charge to which all other defences usually and do fall into. This is just as the celebrated learned author Mr. Harris in Harris’s Hints on Advocacy, 18th Edition by George W. Keeton, (Indian Economy Reprint 2012) p. 224  opined, and I completely agree with him, that there are only two answers to a criminal charge  one in law and the other in fact. Mr. Harris posits that these resolve themselves in practice to three: (1) The prisoner is not the man (mistaken identity); (2) No intention to commit the act; or, 3. The act was never committed. That it is under one or other of these heads that the various defences will range themselves. Insanity; No proof of property; No guilty Knowledge; Consent and so on. Appellant’s main complaint here is of mistaken identity.
Let me now scrutinize the two ambits of appellant’s said defence, namely need for identification parade and failure of the prosecution to investigate the defence of alibi he put forward for the first time in the witness box during his defence.
On identification parade, I am completely in agreement with the State and the trial judge that on the evidence before the Court, a formal identification parade was completely unnecessary. Identification consists of a whole series of facts and circumstances by which a witness or witnesses to a crime associates a suspect with the commission of the crime. That is also the position of the Supreme

…………………….G…………………….

Court in Archibong v. State (2006) LPELR 537; (2006) 14 NWLR PT (1000) 349 @ 371 and reconfirmed by the same Court recently in Okashetu v. The State (2016) 15 NWLR (PT 1534) 126 @ 163 paras D – E thus:
Identification in this connection means a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offences charged. It may consist of or include evidence in the form of finger prints, handwriting, voice, identification parade, photographs, identity of the recollection of the features of the culprit who saw him in the act of commission of a crime or a combination of two or more of these. 
Here, P.W’s 4 and 7, two eyewitnesses to the robbery, were shown to have had sufficient time to identify the appellant as one of the robbers that robbed the Ogundipes on the 5th of September 2014. PW7, Lydia Olaoye, for instance, was the lady who came to open the gate for appellant and his partners in crime. Her evidence is that appellant and his gang first spent time asking her questions about the whereabouts of the Ogundipes before they brought out their guns and forced her back to the house for the robbery operation. Pw3, Felicia Ajiboye, the mother of Mrs. Ogundipe, also witnessed the whole event and even claimed she knew appellant in Omu-Aran before the robbery.
There is also the evidence, unchallenged, of PW2, the taxi driver as to the confession of appellant to him; how the guns and money were recovered from the appellant, and how P.W.3 and 7 promptly identified only appellant when he took them and the police to the scene of crime in distant Omu-Aran as the trial judge also correctly observed.
There is also evidence that appellant also confessed to Mrs. Ogundipe, whom he further admitted had engaged him for block-moulding some years back in Omu-Aran, he also led the Police to his co-robber’s residence in Ilorin. In such circumstances, I completely agree with the trial judge that it will be idle to talk about need for a formal identification parade or any further identification of any kind, appellant having identified himself as one of the robbers. In similar circumstances in Ikemson v. State (1989) LPELR- 1473; (1989) 3 NWLR (PT 110) 455, Oputa J.S.C. had this to say: In this case, the P.W.1 had enough time to observe the appellant as fair complexion and wearing a beard. These are signs of recognition and therefore of identification. Also immediately the 1st appellant was brought in, after his arrest, P.W.1 quickly, spontaneously and readily identified him as one of those who robbed him and P.W.2. This spontaneous identification of the 1st appellant will certainly carry more weight than the common place ritual of an identification parade which can be tele-guided..
The 3rd accused  the 2nd appellant in this Court – needed no further identification. By his confession, he identified himself. The 2nd accused was identified by his brother thief  the 3rd accused who gave information leading to his arrest. The 4th accused, the 3rd appellant in this Court was seen by the P.W.3 driving the very car stolen in the robbery less than 2 hours after the event. His attempted escape further identified him as one of the robbers.
Circumstantial evidence showing an accused person’s involvement in the commission of the offence charged can also be evidence of identification. In a case like the one now on appeal, there is no need for an identification parade. None was in fact held and the prosecution was not the weaker for it.
A formal Identification parade I repeat was absolutely unnecessary in this case and would have amounted to waste of time if conducted.
Appellant’s contention on failure to investigate the alibi he raised for the first time in the witness box does not fare any better either. The police can only investigate an alibi that is timeously revealed to them by an accused in his extra judicial statement and not one put forward in his defence in Court during trial as it happened in this case. In any case it is now well settled that once the prosecution adduces evidence to the satisfaction of the Court fixing the accused at the scene of crime as it happened in this case, failure to investigate an alibi, even where it was promptly raised, is not fatal to a verdict of conviction: see Sowemimo v. The State (2004) 11 NWLR (PT 895) 515.
And that essentially resolves the complaints of the appellant, as I fail to see any substance in his other complaint of inconsistencies, contradictions and lack of proof of the two charges. In fact I am of the view

…………………….H…………………….

that this appeal is so devoid of merit that it borders on abuse of process and waste of precious judicial time. I have no difficulty in dismissing it, and I hereby dismiss it and affirm the judgment of the trial judge.
CHIDI NWAOMA UWA, J.C.A.: I read the draft of the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with his reasoning and conclusion arrived at in holding that the appeal lacks merit and the order dismissing same. I also dismiss it and affirm the judgment of the trial  Court.
HAMMA AKAWU BARKA, J.C.A.: Having also studied the records and the submissions  of learned counsel, and having also had a preview of the judgment just delivered by my leamed brother BOLOUKUROMO MOSES UGO JCA with which I am in agreement, I fail to see any scintilla of merit in the instant appeal and therefore qualify for dismissal.
For the lucid and well articulated reasoning in the lead judgment which I adopt as mine, I dismiss this appeal, being one lacking in merit and thereby affirm the conviction and sentence of the lower Court.

Appearances

Taiye Oniyide Esq.,with him Miss Tomileye Omole-For Appellant

AND

Mrs Funsho D. Lawal, Solicitor-General of Kwara State, with her M.O. Yusuf Esq., C.S.C., and B.L. Abdulsalam Esq., S.S.C., all of Kwara State Ministry of Justice-For Respondent

Leave a Reply

Your email address will not be published. Required fields are marked *