AFOLABI v. THE STATE (2018)

In The Court of Appeal of Nigeria

On Friday, the 4th day of May, 2018

CA/IL/C.105/2016

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

AKEEM AFOLABI –Appellant

AND

THE STATE –Respondent

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HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): One Alhaja Aisha Ibirinade Raji was returning to her house on the 13th of May, 2013 along Jebba road Adewole Estate, in Ilorin at about 6.30 to 7.00pm, and just by the gate of her house, while waiting for the gate to be opened, three young boys armed with a locally made double barrel pistol attacked and robbed her of her vehicle, a Honda CRV with registration number KSB 215 AA and certain valuables. She promptly reported the Armed Robbery to the police.Few months thereafter, she was invited by the police where she identified the appellant as one of the people that robbed her on that fateful day.
Based on the investigation carried out by the police, Abiodun Omoloye Oluwaseun, Abdul Malik Abiodun and Akeem Afolabi (the Appellant) were arraigned before the Kwara State High Court manned by H. Saleeman J on the 27th of May, 2014 and charged in the following manner:
COUNT ONE
That you Abiodun Omoloye Oluwaseun, Abdul Malik Abiodun and Akeem Afolabi on or about the 13/05/2013 along Jebba road, Adewole Estate, Ilorin Kwara State within the jurisdiction of this Honourable Court conspired together to commit an illegal act to wit; to rob one Mrs. Ibirinade Funsho Raji and you thereby committed an offence punishable under Section 6 (b) of the Robbery and Firearms Act, Cap. R11 Laws of the Federation Nigeria 2004.
COUNT TWO
That you Abiodun Omoloye Oluwaseun, Abdul Malik Abiodun and Akeem Afolabi on or about the 13/05/2013 along Jebba road, Adewole Estate, Ilorin Kwara State within the jurisdiction of this Honourable Court while armed with gun robbed one Mrs. Ibirinade Funsho Raji of a Honda CRV with registration number KWARA KSB315AA, Blackberry Mobile Phone, a Handbag containing Hijabs, a pair of women shoes and valuable documents and you thereby committed an offence punishable under Section 1 (2) of the Robbery and Firearms Act, Cap. R11 Laws of the Federation Nigeria 2004.
To the two counts charge read to the understanding of the accused persons, all pleaded not guilty.
The prosecution called three witnesses; Pw1 was one sergeant Yakub Opaluwo attached to the Special Anti Robbery Squad popularly called (SARS), who tendered Exhibit P1: a locally made double barrel gun. Pw2 the victim of the alleged Armed Robbery, and Pw3 who tendered Exhibit P.4 the confessional statement of the appellant amongst others.
The appellant testified in his own defense and was recorded as Dw3. Written addresses were ordered filed and adopted. In a considered judgment delivered on the 24th day of March, 2016, the learned trial Judge considered the totality of the prosecution and defense evidence from pages 149 of the records to 154 and concluded that:
On the whole, I also hold that the third accused person (Akeem Afolabi) guilty of the offences of Criminal Conspiracy and Armed Robbery.
Dissatisfied with his conviction and sentence, appellant filed a Notice of Appeal on the 20th of June, 2016 predicated on five grounds of Appeal. The Extant Notice of Appeal is the amended Notice of Appeal filed on the 11th April, 2017, but deemed filed on the 2nd of May, 2017, bearing nine grounds of Appeal. The records of Appeal were duly filed on the 15th November, 2016, but regularized on the 31st of January, 2017.
The appellants brief of argument filed on the 17th August, 2017, deemed filed on the 4th of December, 2017. The respondent filed a

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respondents brief dated the 28th December, 2017 but filed on the 2nd January, 2018.
When the Appeal eventually came up for hearing on the 22nd of February, 2018, Ibrahim Alabidun of learned Counsel for the appellant identified the processes filed by him in prosecuting this Appeal, adopted and relied on the brief of argument settled by him and urged the Court to allow the Appeal, set aside the decision of the lower Court and discharge and acquit the appellant.
Mrs. Funsho D. Lawal, the learned Solicitor General for the State equally identified the respondents brief settled by self and urged the Court to dismiss the Appeal and to affirm the conviction and sentence of the lower Court, from the totality of the grounds of Appeal filed, three issues were submitted for determination of the Appeal as follows:
i) Whether having regards to the facts and circumstances of this case, identification parade was not necessary and whether failure to conduct same was not fatal to the prosecution’s case and the conviction of the appellant?
ii) Whether the trial Court was right in its decision convicting the appellant of the offences of 
armed robbery and criminal conspiracy when the prosecution failed to prove the guilt of the appellant beyond reasonable doubt and the trial Court ignored the credible and uncontradicted evidence of the appellant?
iii) Whether the trial Court was right in convicting the Appellant of the offences charged by placing heavy reliance on the inadmissible purported confessional statement (exhibit P4)?

The learned Solicitor General for the respondent identified two issues in resolving the instant Appeal in the following manner:
(1) Whether the case of criminal conspiracy and armed robbery was proven beyond reasonable doubt as required by law against the appellant at the lower Court.
(2) Whether there is need for identification parade in the circumstances of this case.

I would prefer the issues submitted by the learned Counsel for the respondent on the simple reasoning that appellant’s issues 2 and 3 are concisely covered by the respondent’s issue one. I intend however to treat the second issue first before considering issue one.
1) Whether there is need for identification parade in the circumstance of this case.
The learned Counsel for the appellant submitting on the question whether identification parade was not necessary in the circumstance of the facts before the Court, and whether the failure to conduct same was not fatal to the prosecution’s case argued that the necessity of conducting identification parade is mostly determined by the circumstance surrounding the commission of the alleged crime especially where the accused person was not arrested at the scene of the alleged crime. He adverted to such instances identified in the case of Orok vs. The State (2010) All FWLR (pt. 532) 1732 at 1746.
He contended that the trial Court was wrong when it held that identification parade was not necessary in the present case. He states that the alleged crime was committed under circumstances under which makes it difficult for an eyewitness or victim of the crime to see clearly. Learned Counsel drew the Court’s attention to the case of State vs. Salawu (2011) NWLR (pt. 1279) 580 at 609 and submits that the victim failed to give the police the description and physical features of the appellant thus creating doubt as to his identity and therefore the need for the identification parade. Further alluding to the totality of the prosecution’s evidence, and the case of Balogun vs. A.G. Ogun State (2002) 4SC 48 at 49, it was argued that the necessity for the conduct for identification parade cannot be overemphasized. He noted that the victim never stated that the accused was familiar to her, and her assertion that she not scared was not true.

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Counsel argued also that from the evidence of the Pw2, it is evident that identification parade was not conducted, and therefore the failure to so conduct the identification parade created doubt on the guilt of the appellant and entitles the Appellant to an acquittal. The cases of Adamu vs. The State (1986) 3 NWLR (pt. 32) 865 at 880, Archibong vs. The State (2006) All FWLR (pt. 323) 1742 at 1765 were cited in support of the legal principle. He urged the Court to resolve the issue in favor of the appellant.
The State responded to this issue at pages 17 to 19 of the respondents brief. Therein, the learned Solicitor General referred to excerpts from the evidence of the Pw2 and submits that there was no need for an identification parade in the instant case.
Learned Counsel on the authority of The State vs. Shehu Salawu (2011) LPELR 8252 held the view that the appellant by his oral and confessional statements to the SARS, revealed his involvement in the robbery, and having identified himself an identification parade becomes unnecessary.
Counsel further referred to the evidence of the Pw2 with regards to the appellant begging for forgiveness, and stating that they were the robbers positing that there was no identification as good as the self identification made by the accused person himself in the instant case. There being certainty as to the identification of the appellant there would be no need for an identification parade, and the decision of Onnoghen CJN in the case of Agboola vs. The State (supra) was further referred to. Counsel urged the Court to resolve the issue in favor of the State.
I have no problem resolving this issue at all. For whereas an identification parade becomes necessary under conditions and circumstances enumerated in the case of Orok vs. The State (supra) and that the conduct of an identification parade is only essential in situation where:
1. The accused was not 
arrested at the scene and denies taking part in the crime, or
2. The victim did not know the accused before the offence, or
3. The victim was confronted by the accused for a very short period, or
4. The victim due to time and circumstances must not have had full opportunity of observing the feature of the accused.

It becomes unnecessary where as stated in The State vs. Salawu (supra) that:

it is settled law that it is not in all criminal cases that an identification parade is necessary where there is good and cogent evidence linking the Accused person to the crime on the day of the incident, a formal identification may be unnecessary. Furthermore, where an Accused by his confession has identified himself, there would be no need for identification parade. Identification is the means of establishing where a person charged with an offence is the same person who committed the offence.
Of recent, the Supreme Court through Kekere-Ekun in the case of Akindipe vs. The State (2016) 15 NWLR (pt. 1536) 470 at 497, reemphasized the position of the law thus:

An identification parade is not a sine qua non in all cases. Where there is no uncertainty or doubt as to identity of an accused person there would be no need to conduct an identification parade. One of those circumstances is where an accused person confesses to the commission of the offence and the confession is found to be consistent with other facts outside it. In other words, where by his confession, an accused person identifies himself;

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there would be no need for any further identification parade.
It does not matter as contended by the appellant, that even if all the victim had was a fleeting encounter between himself (victim) and the suspect, so far as there is any other piece of evidence leading overwhelming to the identity of the accused, regardless of the fact that accused was unknown to the victim prior to the incident but where a struggle ensued, and a close encounter ensued, leading the victim to observe the features of the attacker, there would be no need for any identification parade. See Kekong vs. The State (2017) 18 NWLR (pt. 1596) 108 at 145-146. See also Omopupa vs. The State (2008) All FWLR (pt. 445) 1648, Ndukwe vs. The State (2009) 7 NWLR (pt. 1139) 43 per Eko JSC.
In the instant case, the PW2 the victim of the robbery, gave evidence to the following effect:
God gave me courage on that day, I was calm, I was bold on that day, I was not scared with their presence. I just told them boldly that I will give them the car if they need it. I was looking at their faces…. 2nd and 3rd Accused came to attack me and took the car from me.
She continued to further state that:
I immediately saw 2 Accused who stood by the car behind the steering. They are the 2nd Accused and the 3rd Accused (appellant). I looked at my side and I saw the 2nd Accused pointing a gun at me. it was then the 3rd Accused person went to the passenger’s side.
Furthermore, appellant in Exhibit P4, his written confessional statement to the Police, revealed his involvement in the robbery against the Pw2. And further still appellant orally identified himself as one of the robbers that robbed Pw2 by prostrating and begging her (the victim) for forgiveness thereby admitting that he (appellant) was involved in the robbery in question. I agree with the learned Solicitor General that there is no identification as good as the one made by the appellant in person to his victim.
Indeed the evidence of the identity of the Appellant as one of the robbers that robbed the PW2 is overwhelming and his identity being certain, there is no need for an identification parade. The case of Orok vs. The State cited by the Appellant though good law for the purpose for which it was made is inapplicable to the instant case. I do in the circumstance resolve this issue against the Appellant.
ISSUE TWO
Whether the case of Criminal Conspiracy and Armed Robbery was proven beyond reasonable doubt as required by law against the Appellant at the lower Court.
By this issue the appellant complained about his conviction by the lower Court on offences of armed robbery and conspiracy in the face of the evidence before it.
Learned counsel submitted that the prosecution had the burden of proving the guilt of the accused person which burden must be proved beyond reasonable doubt as required by Section 135 of the Evidence Act. He argued that the prosecution evidence was so discredited that it cannot form the basis of the applicant’s conviction.
Learned counsel x-rayed the evidence of the prosecution and noted that the evidence of the witness cannot be relied upon, and argued that Pw1 and Pw2 did not arrest the appellant nor did they state when he was brought into their custody and moreover, Pw2 being an interested witness, her evidence should be taken with caution. Relying on the case of Momodu vs. The State (2008) All FWLR (pt. 447) 67 at

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116, submits that whereas Pw2 stated that she does not know anything about a gun, the lower Court wrongly assumed that (Pw3) a police officer is an expert who can give evidence as to whether P1 is actually a gun.
It was also contended for the appellant that the prosecution failed to prove that the robbery was armed robbery, the identity of the appellant as one of the robbers having not been established. Further to that, counsel argued that the prosecution failed to tender in Evidence any item allegedly taken away from the victim and recovered from the appellant in line with the decision of Nwomukoro vs. The State (1995) 1 NWLR (pt. 372) 432 at 444. He emphasized that there are three ingredients of armed robbery as posited in Attah vs. The State (2010) All FWLR (pt. 540) 1224 at 1256, and submits that all the three ingredients were not established.
It was equally contended for the appellant that Exhibit P4, the alleged confessional statement of the appellant, relied upon by the lower Court in convicting the appellant for armed robbery and conspiracy did not meet the test enunciated in the case of Akpan vs. The State (2000) 12 NWLR (pt. 682) 607 at 623.

Further submitting on the defense of Alibi raised by the appellant before the lower Court, learned counsel alluded to the holding of the lower Court at page 151 of the records, and also relied on the case of Umani vs. The State (1988) 1 NWLR (pt. 70) 274 at 284, and Yanoi & Ors vs. The State (1965) NWLR 331 at 342 to argue that the uncontroverted evidence of the appellant on alibi, though not raised timeously, ought to have been considered in line with the decision of Abdullahi vs. The State (2005) All FWLR (pt. 263) 698 at 717. He argued that by so doing the lower Court failed in its duty of considering all possible defenses available to the appellant, and thereby urged the Court to rely on the case of Umani vs. The State (supra) and to resolve the issue in favor of the appellant. He goes further and insists that the prosecution’s case is replete with doubts for even where an accused person admits that he committed the offence leveled against him, the prosecution is not relieved of the burden of establishing the guilt of the accused person. The case of Adekoya vs. The State (2013) All FWLR (pt. 662) 1932 at 1650 was referred to. Further to that, he referred to the case of Ndidi vs. The State(supra) at p. 1650 on the need for the prosecution to adduce cogent evidence in respect of offences that carry the death sentence, submitting that the reasoning of the lower Court at pages 103-105 of the records are completely at variance with the excerpts of the judgment of the lower Court, and therefore the findings failed to support the conviction and thereby occasioned a serious miscarriage of justice. For instance learned counsel argued, appellant was taken to Ilorin SARS office on the 7th of July 2013 as against 18/8/13 as opined by the trial Judge, and went further to contend that the lower Court relied on extraneous matters or intuition in convicting the appellant, maintaining that a Court’s decision must be anchored and based on the evidence before it and where the Court goes outside the evidence adduced, such a decision will not be allowed to stand. The case of Unoka vs. Agili (2008) All FWLR (pt. 423) 1349 at 1372 was relied on.
Learned counsel proceeded to fault the evaluation of the evidence undertaken by the lower Court contending that from the salient points deducible from the evidence rendered by the appellant, the decision of the Court of trial ought to have been otherwise. He urged this Court to evaluate the evidence placed before the lower Court and to make the appropriate findings to the effect that the prosecution failed to prove the offences charged against the appellant beyond reasonable doubt. The case of Archibong vs. The State (supra) was cited in support.

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Furthermore, learned counsel contends the admissibility of Exhibit P4, and the reliance of the lower Court on same to convict the appellant. It was contended that P4 was inadmissible in law being a public document within the contemplation of Section 318 (h) of the Constitution of Federal Republic of Nigeria 1999 as amended, see Tabik Investment Ltd vs. G.T.B Plc.(2011) All FWLR (pt. 602) 1592 at 1607. He contended that Exhibit P4 being a secondary copy of the document was not certified as required by law. See Dagaci of Dere vs. Dagaci of Ebwa (2006) All FWLR (pt. 306) 786 at 839, Onochie vs. Odogwu (2006) All FWLR (pt. 317) 544 at 565. He therefore urged the Court to expunged the document from the records in line with the decision in Onochie vs. Odogwu (supra) and to hold that the admission of the document in evidence occasioned a miscarriage of justice, and Exhibit P4 being pivotal to the conviction of the appellant, the prosecution’s case is doomed to fail. He finally urged the Court to allow the appeal upon the resolution of the three issues canvassed in his favor and to discharge and acquit the appellant.
It was submitted for the respondent that the case of Armed Robbery and Conspiracy was proved by credible and admissible evidence against the appellant as required by law.
On the offence of Armed Robbery preferred against the appellant, learned counsel referred to the cases of Aruna vs. The State (1990) 6 NWLR (pt. 155) 125, Attah vs. The State (2010) 3 MJSC (pt. 11) and Aruna vs. The State (1990) 6 NWLR (pt. 155) at 125 on the ingredients of the offence submitting that evidence of the Pw2, Pw3 taken together with the voluntary statement of the appellant contended in Exhibit P4 established beyond doubt that appellant committed the offence of armed robbery. He argued that there was no contradiction that Armed Robbery took place on the date stated against the Pw2. He alluded to the evidence of the Pw2 at page 128 of the records, as well as that of the Pw3, to contend that there was indeed an Armed Robbery attack on the person of Alhaja Aisha Ibirinade Raji on the 13/5/13.
On whether the weapon used was a gun, learned counsel referred to the evidence of Pw2 and Pw3 to the effect that Exhibit P1 is a gun.
On whether the appellant was the robber or one of the robbers, the learned Solicitor General maintained that from the evidence before the court, the truth is that appellant was one of the robbers that robbed the Pw2 on the fateful day. The evidence of the Pw2 on the issue was x-rayed and the confessional statement of the appellant in his own handwriting referred to, in submitting that the lower Court’s position as held at page 153 of the records should not be interfered with.
Learned counsel described the contention of the appellant on the various issues as erroneous, as the Court is not bound to believe any adverse evidence nor backed with credible and believable facts. She argued that the case of Momodu vs. The State (supra) dealt with unlawful possession of firearms, and the question whether the arm in question was a real gun or a toy gun. She posits that by the evidence of Pw1 and Pw3 who are police officers, there cannot be any contention to their position that P1 was a gun.
On the non-tendering of the items purportedly, stolen, learned counsel referred to the evidence of the Pw2, and the far reaching revelations in the statement of the appellant, and submits that the items cited were taken away and disposed off as stated by the appellant himself.
She contended that a free and voluntary confessional statement without more can solely ground a conviction, and the case of Solola vs. The State (2005) All FWLR (pt. 259) 1751 at 1782 was referred to. She further referred to the case of

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Lasisi vs. The State (2013) NWLR (pt. 1358) 80 on the need for corroborative evidence though not a condition precedent contending that appellant by his oral and written statement gave compelling critical account of the commission of the crime.
The statement having been subjected to a trial within trial, the legal status of Exhibit P4, is as stated in the cases of Mustapha Mohammed vs. The State S.C 184/2006, Ikemson vs. The State (1989) 3 NWLR (pt. 110) and Jua vs. The State (2010) 4 NWLR (pt. 1184) 217.

In further submission, the learned Solicitor General submits that all six veracity test outlined by the Apex Court in Akpan vs. The State (2000) 12 NWLR (pt. 682) 607 at 623 and Emeka vs. The State (1998) 7 NWLR 557 were established, thus corroborating the confession made.
On whether the charge of Conspiracy was established against then appellant counsel enumerated the following which must be met:
1. An agreement between two or more persons to do or cause to be done an illegal act or some act which is not illegal by illegal means.
2. Where the agreement is other than agreement to commit an offence, but that some act besides the 
agreement was done by one or more of the parties in furtherance of the agreement.
3. Specifically that each of the accused individually participated in the conspiracy. See THE STATE vs. SALAWU (2010) All FWLR (pt. 614) 1 @ 29, ADEKUNLE vs. THE STATE (1989) 12 SCNJ 184, NWOSU vs. THE STATE (2004) All FWLR (pt. 218) 916. 

He posits that the way and manner appellant and his colleagues robbed the Pw2 showed the element of the meeting of the mind or agreement, and the case of Tete Francis Lawson & Ors vs. The State (1975) 4 SC, Sani Abacha vs. The State (2002) 11 NWLR (pt. 779) 4 37 were referred to.
It was then submitted that a cursory perusal of the evidence of Pw1 – Pw3, along with Exhibits P2, P3 and P4, considered with Exhibits P5, P6 and P7 will provoke an obvious inference that connected to the robbery of the 13/05/2013 and other serial robberies, and thereby the conclusion that the prosecution has proved the offence of conspiracy against the appellant.
On the defense of Alibi raised by the appellant, learned counsel is of the view that such had been adequately considered by the lower Court, submitting that the alibi was not properly placed as a defense before the trial moment. It was posited that although appellant was not arrested at the scene as contended by the appellant, his confession in Exhibit P4 and the evidence of Pw2 and the subsequent physical identification watered down his claim to the defense of alibi. Relying on the case of Hausa vs. The State (supra), it was contended that where there are positive pieces of evidence, which cancels the alibi raised, it then becomes demolished and the case of Umani vs. The State (supra), cited and relied upon by the appellants inapplicable. The Court was urged to dismiss the appeal and to affirm the conviction and sentence imposed by the lower Court.
It should be recalled that appellant and two others were charged before the lower Court for the offences of conspiracy to commit armed robbery, and armed robbery contrary to Sections 6 (b) and 1 (2) of the Robbery and Firearms Act Cap. R.11 Laws of the Federation of Nigeria, 2004, and by the stipulation of Section 135 of the Evidence Act 2011, the prosecution has the onerous duty of proving the guilt of the accused person beyond reasonable doubt. This statutory provision no doubt amplified the constitutional provision in Section 36 (5), which guarantee the innocence of an accused until proven guilty. The standard of proof does not extend to mean proof beyond any shadow of doubt, It

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rather denotes that situation where all the essential ingredients of the offence charged have been proved or established by the prosecution. The authorities in this regard are too numerous to mention, but includes,Nwaturuocha vs. The State (2011) 6 NWLR (pt. 1242) 170 @ 175; Eyo vs. The State (2016) ALL FWLR (pt. 1206) 1039 @ 1050; State vs. Isiaka (2014) ALL FWLR (pt. 729) 1053 @ 1061.
The Supreme Court in the case of Eyo vs. The State (supra), emphasized that:

The law does not look for certainty. Once the ingredients of a particular criminal offence are established by the prosecution beyond reasonable doubt, and then the burden becomes that of the accused to discharge that is to show by credible evidence that he was not guilty. I refer to Nwankwo vs. FRN (2003) 4 NWLR (pt. 809) 1 @ 36 and Alonge vs. IGP (1959) SCNLR 516. per Coomassie JSC.

It has been established that the following ingredients must be established to ground the offence of armed robbery, against an accused person.
1. That there was a robbery or series of robberies.
2. That the robberies or series of robberies were armed robberies.
3. That the accused person (s) were or was one of the people or peoples that committed the armed robbery.
SeeAfolalu vs. The State (2010) ALL FWLR (pt. 538) 812; Bozin vs. The State (1985) 2 NWLR (pt. 8) 465; Aruna vs. The State (1990) 6 NWLR (pt. 155) 125; Adeosun vs. The State (2007) 46 WRN 1; Eyo vs. The State (supra) @ 511,and The State vs. Isiaka @ 1062, amongst many others.
In the instant case, the prosecution through the PW 2 gave evidence at pages 64 to 65 to the effect that on the 13th of May, 2013 at about 6.30pm to 7pm, while waiting for the door to her house to be opened for her, she was robbed of her car with registration number KSB 315 AA, a Honda CRV ash color at gun point, and on the next day, she reported to the Adewole police station. Pw3, Saliu Oyinbo, a police officer attached to the Special anti robbery squad Kwara police command, narrated how on the 14th of May, 2013, a case of conspiracy and armed robbery was reported to the station and he was detailed to investigate. In clear terms the fact that there was a robbery on the 13th of May, 2013 has been established by the prosecution and I so hold.
On whether the robbery was armed robbery, evidence has shown that indeed the robbers had a gun which they pointed at the victim pw2 in dispossessing her of her vehicle and other belongings. PW2 in her evidence, narrated how:
I immediately saw two accused who stood by my car behind the steering. They are the 2nd accused and the third accused. I looked at my side; I saw the 2nd accused pointing a gun at me. I told them if it was my vehicle they need, they should allow me to highlight from the vehicle and take the car away. The accused took the car away.”
The alleged gun tendered before the Court as Exhibit P1 was described by Pw 1, Sgt. Opaluwe Yakub as a locally made double barrel pistol.
The appellant in his statement Exhibit P4 admitted that they snatched Pw2’s vehicle at gun point. Armed robbery was defined to mean simply stealing plus violence used or threatened. See Aruna vs. The State (1990) NWLR (pt. 155) 125. On what qualifies an object as an offensive weapon, Katsina Alu JSC, in Dibie vs. The State (2007) 9 NWLR (pt 1038) 30; opined that it is the object made use of, and the manner of its usage that qualifies it as an offensive weapon. So where an object which is either a pistol or what looked like a pistol is used,

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the intention of the user qualifies the object used as an offensive weapon. See also Sele vs. The State (1993) 1 NWLR (pt. 269) 276. The learned counsel for the appellant, in relying on the case of Momodu vs. The State (2008) All FWLR (pt. 447) 67 @ 116, sought to argue that none of the witnesses called qualified as experts in discerning whether Exhibit P1 is actually a gun or not. In other words, I understand the learned counsel as saying that a sergeant in our Nigerian police force is incapable of knowing a simple gun which he had described. I think that is carrying advocacy too far. The case of Momodu vs. The State(supra), must be understood in the context in which it was decided. In any event, what is important is the understanding of the victim, that a gun was employed in dispossessing her of her vehicle. See further on this the cases ofNwachukwu vs. The State (1986) 1 SC 477,
Olatidoye vs. The State (2010) LPELR 9079 (CA), Ajibade vs. The State (2011) LPELR 4938(CA). From all the circumstances of the case, I am convinced as was the lower Court that the robbery was armed robbery, and I so hold.
Finally, for consideration is whether appellant was the armed robber or one of the armed robbers. This too calls for the consideration of the evidence adduced before the trial Court, and the Court’s evaluation of the evidence to that regard. The lower Court alluded to the question posed, and critically examined the same from pages 148 to 155 of the records, and concluded that the third accused person (appellant) was guilty of the offences charged.
Incidentally, the appellant complained that the trial Court did not consider the evidence adduced by the appellant before the lower Court. I think from the foregoing the learned counsel is wrong. It’s evident from the records, particularly from pages 148 to 154 that the lower Court took time to examine the evidence of the appellant, and compared his evidence to other pieces of evidences, as he is wont to do, and disbelieve the evidence proffered by the appellant.
It is elementary in that a trial Court has the primary function of fully considering the totality of evidence placed before it and the ascription of probative value to place on same. The evaluation of such evidence remains in the exclusive domain of the trial Court being the best Court suited to assess the credibility of the witnesses that appeared before it. The appellate Court has no duty interfering where the trial Court conducts its duty as required by law: Agbi vs. Ogbeh (2006) ALL FWLR (pt. 329) 941, Ojokolobo vs. Alamu (1998) 9 NWLR (pt. 565) 226, Ogbeide vs. Amadasun (2017) ALL FWLR (pt. 904) 1139 @ 1165 per Barka JCA.

The appellant has not shown why this Court should interfere with the lower Court’s evaluation of the evidence indicated and I find no reason to so interfere.
Still on the path of discerning whether appellant was one of the robbers or the robber, the lower Court had to contend with the defenses raised by the appellant, and considered the same in reaching the conclusion as to the appellants guilt or otherwise. See State vs. Isiaka (2014) ALL FWLR 1053 (pt. 729) 1053 @ 1063. First is the issue of alibi raised by the appellant in his evidence. The said alibi was raised by the appellant at pages 103 to 104, when appellant was giving evidence. Indeed as held by the lower Court from pages 151 to 152, a defense of alibi must be brought timeously to the attention of the police, to afford ample time to investigate. The position of the law is that where an accused person intends to raise a defense of alibi, he must do so at the earliest opportunity usually during the course of investigation, so that the police would investigate the defense as they are wont to do so as to uncover the truth of the assertion. However it is the further position of the law that the ipse dixit of the accused person is not sufficient proof of his alibi, for he must go further to furnish the police with sufficient particulars of his whereabouts as at the time of the commission of the offence alleged. See Akindipe vs. The State (2016) 15 NWLR (pt. 1536) 470 @ 502; State vs. Ekanem (2017) 4 NWLR (pt. 1554) 85 @ 107; Esangbedo vs. State (1989) 4 NWLR (pt.

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113) 57, Ndidi vs The State (2007) 13 NWLR (pt. 1052) 633.
In the instant case, appellant failed to raise the defense, when he was before the police or in his extra judicial statement, but raised it only after the prosecution had laid out its case, and in his defense. To make matters worse, the PW2, the victim of the offence, vividly recollected seeing the appellant at the scene, and the part played by him, the law is that where the prosecution adduces evidence, sufficient and acceptable, fixing the accused person at the scene of crime at the material time, his alibi stands demolished and renders the defense ineffective. In the instant case, the PW2 positively identified the appellant at the scene of the crime. Furthermore the appellant by his own admission had admitted being one of the robbers that robbed PW 2 of her vehicle. Apparently the defense of alibi raised by the appellant cannot avail him and the lower Court right in holding that the defense is not available to the appellant. See State vs Ekanem (supra) @ 103, Ebenehi vs. State (2009) 7NWLR (pt. 1139) 43, and Ndukwe vs. State (2009) 7 NWLR (pt. 1139) 43, Ogogovie vs. the State (2016) 12 NWLR (pt. 1527) 468 @ 511, Wisdom vs. The State (2017) 14 NWLR (pt. 1586) 446 @ 464  465.

The other aspect considered by the lower Court is the inability of the prosecution to tender in evidence all or any of the items allegedly stolen in evidence. The apex Court considered this question in the case of Simon vs. The State (2017) ALL FWLR (pt. 887) 1929 @ 1949  1950 per Rhodes Vivour JSC, where he said:
Tendering recovered items from an armed robbery is desirably but not mandatory, especially when there is damaging eyewitness evidence that the appellant was one of the armed robbers.”
In the instant case, evidence showed that the items allegedly stolen were taken away in the car that was stolen, and not recovered. The learned counsel for the respondent is right having asserted that no law imposes a duty on the prosecution to tender items stolen in a robbery, and going by the evidence of the PW2 and PW3, the items were taken away, and disposed off as narrated in Exhibit P4. The holding of the lower Court on the aspect cannot therefore be faulted.
There is the vital question raised by the appellants, on whether the trial Court rightly convicted the appellant on the premise of Exhibit P4, which appellant alleged was inadmissible. Exhibit P4 is the disputed confessional statement which the appellant contended he was forced or to made under torture, in other words that the statement was not voluntarily made. The trial Court rightly ordered for a trial with in trial to ascertain the voluntariliness of the statement, and at the end of which, the Court rejected the objection on behalf of the appellant, and admitted the statement as Exhibit P4. It is the law asserted by the Apex Court, in Lasisi vs. The State (2013) 9 NWLR (pt. 1358) 74 @ 96  97, per Onnoghen CJN, that:
once a confessional statement has been admitted following a trial within trial proceeding, it becomes very difficult for an appellate Court to intervene on an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the appeal Court is not privileged to have seen the witnesses testify nor watch their demeanor etc etc.
The above position of the law makes it very difficult for an appellant to successfully contest the question of admissibility of a confessional statement following a trial with in trial proceedings on 
appeal. See also FRN vs. Borisade(2015) ALL FWLR (pt. 785) 227 @ 242.

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The appellant feebly sought to place heavy reliance on the fact that Exhibit P4 being a photocopy, and therefore secondary evidence by virtue of Dagaci of Dere vs. Dagaci of Ebwa (2006) ALL FWLR (pt. 306) 786 @ 839, and Gau vs. Gau (2015) ALL FWLR (pt. 776) 591, which held that only a certified copy of a public document is admissible in evidence, and Exhibit P4 being a public document which was not certified, the Court should suo motu expunge same. Against the background of the case just referred to, that argument by the appellant loses its potency, as appellant cannot complain that he was forced to make a statement, which statement the Court found was indeed recorded by himself, and then later turn to complain that the said statement was inadmissible on the premise that it was secondary evidence. Moreover, I have carefully looked at Exhibit P4, and I am unable to agree with the appellant that it was a secondary copy of the original. The position of the law remains that original copies of public documents by themselves are admissible, and secondary copies are only considered where the original copies are unavailable. See Emeka vs. Chuba  Ikpeazu (2017) 15 NWLR (pt. 1589) 345 @ 394  395.

It is the law that the best form of evidence in a criminal charge and trial is where the accused person makes a confession admitting the commission of the offence charged against him. The only caveat is that it must be shown that confession was voluntary and true to the satisfaction of the Court. See Smart vs. The State (2016) 9 NWLR (pt. 1518) 447 @ 484. I had cause to say in the case of Edokun vs. The State (2017) ALL FWLR (pt. 875) 2125, at 2164, that;
It is trite that an accused person may be convicted on his own confession alone, whether retracted or not provided that the confession is free, voluntary, direct and positive. Once these attributes are present, a confessional statement must rank amongst the highest, if not the highest method by which the commission of a crime is proved. Abirifon vs The State (2013) ALL FWLR (pt. 707) 665, Kopa vs. The State (1971) 1 ALL NLR 150.”
And in the case of Solola vs. The State (2005) ALL FWLR (pt. 269) 1751 @ 1782:
A confessional statement is the best form of evidence in our criminal procedure. It is a statement of admission of guilt by the accused and the Court must admit it in evidence. Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt as the confessional statement obviates the need to prove the quilt of the accused.” See also Hassan vs. The State (2017) 5 NWLR (pt. 1557) 1 @ 38
I must agree with the learned Solicitor General for the state, that the availability of corroborative evidence is not a condition precedent to the conviction of the accused person: Lasisi vs. The State (supra), as the confession on its own suffices to ground a conviction; Gabriel vs. The State (2010) 6 NWLR (pt. 1190) 280 @ 290, Hassan vs. The State (supra) 36, Obiasa vs. The Queen (1962) 2 SCNLR 402, Osuagwu vs. State (2013) 5 NWLR (pt. 1347) 360, Simon vs. The State (supra) @ 1954, Haruna vs. AG of the Federation (2012) ALL FWLR (pt. 632) 1617, Adekoya vs. The State (2012) 3 SC (pt.111) 36, Galadima vs. The State (2012) 12 SC (pt. 11) 213, Musa vs. The State (2017) ALL FWLR (pt. 891) 846 @ 873. In any event the statement of the appellant was subjected to a trial within trial in determining whether the statement was made voluntarily or not.The further evidence of the PW2 and PW3 reinforced the fact that Exhibit P4 was true, and corroborated the contents therein. In Exhibit P4, appellant elaborately narrated how the robbery was executed, detailing the part he took in the said robbery. To make matters worse, appellant on sighting the victim of the robbery at the police station openly confessed to being one of the robbers that robbed the PW2, and begged for forgiveness from her. On the question whether appellant was the robber or one of the robbers, there is no iota of doubt that he was one of the robbers, and thus the offence of armed robbery against him proved to the hilt.
The other complaint raised by the appellant was that his conviction for the offence of conspiracy cannot be sustained. Conspiracy generally means no more than that agreement by two or more persons to

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do an unlawful act or to do a lawful act by unlawful means. See Ogogovie vs. The State (2016) 12 NWLR (pt. 1527) 468 @ 493. It is the law that the offence is normally inferred as it is difficult to get direct evidence, being that conspirators normally and usually conspire aided by darkness or in secrecy. It is inferred from the circumstances of each case, the evidence that gives rise to the inference and the conclusions drawn from such illegal agreements. See The State vs. Salawu (2010) ALL FWLR (pt. 614) 1 @ 29, Iboji vs. The State (2016) 9 NWLR (pt. 1517) 216 @ 229, Daboh vs. The State 1977 5 SC 197. Iwuneve vs. The State (2000) 5 NWLR (pt. 658) 550. The lower Court considered the various pieces of evidence adduced by the accused persons, their confessional statements and the evidence of the victim, PW2 and rightly inferred that the offence of conspiracy was indeed proved, with each of the conspirators going about performing their various tasks towards the actualization of the agreement. I am left in no doubt that the trial Court was right from the facts before it in arriving at the conclusion that the appellant conspired with the other co-accused persons to rob the PW2. This issue is therefore resolved against the appellant.
Having resolved all issues canvassed against the appellant, the inevitable conclusion is that this appeal is lacking of any merit, thus deserving and is hereby dismissed. The judgment of Saleeman J, in suit No KWS/42c/2014, delivered on the 24th of March, 2016, wherefore appellant was convicted and sentenced to death is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A.: I read in advance, the draft copy of the judgment delivered by my learned brother, HAMMA AKAWU BARKA, JCA. His lordship has meticulously resolved the issues. I adopt his reasoning and conclusion arrived at in holding that the appeal is lacking in merit and affirming the judgment of the lower Court convicting and sentencing the appellant to death. I also dismiss the appeal.
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the judgment of my learned brother HAMMA AKAWU BARKA J.C.A. I agree with his reasoning and conclusion that there is no merit in this appeal; accordingly, I also dismiss it and affirm the judgment of the lower Court.

Appearances

Ibrahim Alabidun with him, I. B. Mohammed. –For Appellant

AND

F. D. Lawal (SG) Kwara State Ministry of Justice with him, Abdullahi Yusuf (ACSC), M. J. Orire (Mrs.) (PSC) and Y. O. Yusuf (SCI) for the State. –For Respondent

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