OJOCHOGWU v. THE STATE (2017)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of June, 2017

CA/A/410C1/2016

Before Their Lordships

ABDU ABOKI Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria


Between

OJOCHOGWU P. ABRAHAM Appellant(s)

AND

THE STATE Respondent(s)

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ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Kogi State, holden at Ankpa, delivered on the 8th day of June 2016 by A. N. Awulu, J.The summary of the facts leading to this appeal are that the Appellant herein was the 2nd accused person at the Lower Court, wherein he was charged on a six head of charge, with the other accused person, to wit:
1ST HEAD OF CHARGE
That you, Alhaji Musa Ali, Ojochogwu P. Abraham (a.k.a.) papa, and other still at large, on or about the 4th Day of December, 2014, at Opulega-Ankpa in Ankpa Local Government Area within the Kogi State Judicial Division agreed to do an illegal act wit: to commit armed robbery on one Nuhu Odoma and that the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
2ND HEAD OF CHARGE
That you, Alhaji Musa Ali, Ojochogwu P. Abraham (a.k.a.) papa, and others still at large, on or about the 4th Day of December, 2014, at Opulega-Ankpa in Ankpa Local Government Area within the Kogi State Judicial Division while armed with dangerous weapons like knives, guns and cutlasses robbed Nuhu Odoma of his Toyota Camry Car with Reg. No.DAH221, AA, a Honda Trigmas Generator, three pairs of shoes, two Nokia phones and the sum of Forty Thousand Naira only (N40,000.00) and you thereby committed an offence punishable under Section 298 (c) of the Penal Code.
3RD HEAD OF CHARGE
That you, Alhaji Musa Ali, Ojochogwu P. Abrahim (a.k.a.) papa, and other still at large, on or about the 21st Day of October, 2014, at Ankpa-Ede, Ankpa, in Ankpa Local Government Area within the Kogi State Judicial Division agreed to do an illegal act wit: to commit armed robbery on one Abdul Usman and that the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
4TH HEAD OF CHARGE
That you, Alhaji Musa Ali, Ochogwu P. Abrahim (a.k.a.) papa, and other still at large, on or about the 21st Day of October, 2014, at Ankpa-Ede, in Ankpa Local Government Area within the Kogi State Judicial Division agreed while armed with dangerous weapons like knives, guns and cutlasses robbed one Abdul Usman of his V/W Golf car with Reg. No. 
FST 866 BE, LAGOS, a small generator, a sharp supper TV. Set and other valuable items and you thereby committed an offence punishable under Section 298(c) of the Penal Code.
5TH HEAD OF CHARGE
That you, Alhaji Musa Ali, Ojochogwu P. Abrahim (a.k.a.) papa, and other still at large, on or about the 3rd Day of November, 2014, behind Onu Ankaps Palace, Ankpa, in Ankpa Local Government Area within the Kogi State Judicial Division agreed to do an illegal act wit: to commit armed robbery on one Attabo Onuche and that the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
6TH HEAD OF CHARGE
That you, Alhaji Musa Ali, Ojochogwu P. Abrahim (a.k.a.) papa, and other still at large, on or about the 3rd Day of November, 2014, Behind Onu Ankpas Palace, in Ankpa Local Government Area within the Kogi State Judicial Division agreed while armed with dangerous weapons like knives, guns and cutlasses robbed one Attabo Onuche of his Acura Jeep with Reg. No. AX882 NSW valued at 3.5 Million Naira and the cash sum of twenty five thousand naira and you thereby committed 
an offence punishable under Section 298(c) of the Penal Code.
The accused persons all pleaded not guilty to the charge. In proof of its case, the Prosecution called three witnesses: PW1 (Nuhu Odoma), PW2 (CPI, Benjamin Joshua a Policeman serving at the Ankpa Police Division) PW3 (Sgt. Adeoye a policeman serving at the State CID Lokoja) and tendered two exhibits, i.e. the extra judicial statements of the 1st -2nd accused persons, which were admitted in evidence as Exhibits P1, P2 respectively.
The accused persons elected to testify in their defence and tendered no exhibit.
At the conclusion of trial, the learned trial Judge found the 1st-2nd accused persons guilty of the 1st and 2nd head of charge and discharged and acquitted them on heads of charge 3, 4, 5 and 6. The trial Court accordingly sentenced the 1st and 2nd accused persons to two years imprison-ment each for the offence of criminal conspiracy and fifteen years imprisonment each for the offence of armed robbery. The sentences are to run concurrently.
It is against this conviction and sentence that the Appellant herein appealed to this Court vide a Notice of Appeal filed on the 8th

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of July 2016, upon five grounds, as can be found at pages 91 to 93 of the printed Record.
In line with the extant Rules and practice of this Court, parties filed and exchanged briefs of argument, which were adopted and relied on, at the hearing of this appeal.
In the Appellant brief filed on the 11th of August 2016, the following three issues were distilled for determination by this Court, to wit:
1. Whether the Trial Judge rightly convicted the appellant having regard to the evidence on record and the standard of proof required by law to secure a conviction for the offence of armed robbery.
2. Whether having regard to the evidence on record, learned trial judge was right when he failed to consider the defence of alibi and held that the alibi does not avail the appellant.
3. Whether the learned trial Judge properly evaluated the evidence having regard to the circumstance of this case.

The Respondent in its brief filed on the 15th of September 2016, adopted the two issues as distilled by the Appellant.
Therefore, this Appeal shall be determined based on the three issues.
ISSUE ONE
Whether the Trial judge rightly convicted the appellant having regard to the evidence on record and the standard of proof required by law to secure a conviction for the offence of armed robbery.
In arguing this issue, learned counsel for the appellant contended that this issue calls for a consideration of evidence on record as to ascertain whether the essential ingredients of the offence of armed robbery was established beyond reasonable doubt by the prosecution to justify the conviction of the Appellant.
He maintained that it is the duty of the prosecution to prove the following ingredients for him to succeed in securing the conviction of the Appellant;
1. That there was a robbery or series of robbery;
2. That the robbery or series of robbery was an armed robbery and;
3. That the appellant was one of those who took part in the armed robbery.
He submitted that each of the ingredients must be proved to sustain the conviction of an accused for the offence of armed robbery. Failure of the prosecution to prove any of these ingredients beyond reasonable doubt is fatal to its case. He referred the Court to the cases of;
NWOCHA V. STATE (2012) 9 NWLR (PT.1306) 571, AND 592
THE PEOPLE OF LAGOS STATE V. UMARU (2014) 7 NWLR (PT.1407) 584 AT 605-609.

Learned counsel to the Appellant contended that the prosecution did not prove two of the essential ingredients of armed robbery against the appellant before he was convicted. Specifically, the prosecution did not prove that the alleged robbery was an armed robbery; and that the appellant was one of those who took part in the armed robbery.
He argued that there is no credible and cogent or compelling evidence on record to establish that the alleged robbery was an armed robbery; and that the appellant was involved in the armed robbery.
He maintained that the prosecution called three witnesses; PW2 and PW3 did not witness either the robbery or the arrest of the appellant and have no direct or credible evidence to establish any of the said two ingredients of armed robbery. The only evidence relied upon by the trial Court in convicting the appellant is the evidence of PW1, the complainant,
He argued that there was no evidence of any violence whether threatened or actual nor evidence of the alleged guns, cutlasses and knife on record.
He

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maintained that PW1 was not the only person present during the alleged armed robbery. Members of his household were present and constitute vital witnesses. None of the eye witnesses from the household/ family members of the PW1 who was present at the time of the robbery was called to testify or give evidence to establish that the robbery was indeed an armed robbery and that the appellant participated.
He submitted that the failure of the prosecution to call the vital witnesses present at the time of the robbery whose evidence would have settled the matter once and for all is fatal to the prosecution’s case that the robbery was an armed robbery and that the appellant is one of the armed robbers that participated in the robbery. He referred to the case of; KAYODE V. STATE (2012) 11 NWLR (PT.1312) 523 AT 547-548.
He submitted also that the prosecution is not obliged to call all the witnesses. However, failure to call the relevant witnesses to give evidence for the prosecution is fatal to the prosecutions case. He referred to the case of; STATE V. ISAH (2012) 16 NWLR (PT.1327) 613 AT 630 AND 634.
He maintained that there is no credible and or admissible evidence of the circumstance in which the appellant was arrested. None of the three (3) witnesses who testified for the prosecution was present at the time of arrest of the appellant. Their evidence thereof is not only at variance with the account of the appellant, but also constitutes an inadmissible hearsay.
He submitted that the prosecution did not prove the important ingredients of the offence of armed robbery against the appellant. The prosecution is under obligation to prove beyond reasonable doubt that the appellant was one of the person that committed the armed robbery to secure a conviction for the offence of armed robbery against the appellant.
He further submitted the only evidence of the appellant’s alleged involvement or participation in the armed robbery is contained at pages 28 to 38 of the record which evidence is incapable of establishing the essential ingredients of armed robbery that the appellant was one of the armed robbers particularly that the said evidence is contradictory and was not corroborated.
He contended that the appellant was not properly identified. The only evidence of identification of the appellant is the ipsi dixit of PW 1 which alleged identification is predicated on his observation in fearful and difficult condition with probability of mistaken identity.
He submitted therefore that the quality of the evidence of identification of the appellant in the commission of the Crime is doubtful, poor, improper and therefore entitled to be acquitted. There was no evidence linking the appellant with the robbery and with the certainty which is required as a pre-requisite to any conviction in criminal case.
He contended that PW1 contradicted himself in his testimony with respect to the appellant’s involvement or identity. HE REFERRED TO PAGES 28 OF THE PRINTED RECORD.
He submitted that a proper identification parade is imperative in the circumstance to avoid mistaken identity. More so that the witness PW1 did not show that he knew the appellant at any time prior to the alleged armed robbery and the witness (PW1) written statement at the police station was not tendered in evidence showing any of the features of identification at the earliest possible time. HE REFERRED TO THE CASES; IKARIA v. STATE (2014) 1 NWLR (PT 1389) 639 AT 653-654.
ALABI V. 
STATE (1993) 7 NWLR (PT.307) 511 AT 533
Learned counsel argued further that the usual and proper way to conduct an identification parade is to place the suspect person with a sufficient number of others and to have the identifying witness pick out the accused without assistance. He refers to the cases of;
BOZIN V. STATE (1985) 2 NWLR (PT.8) 465;
MADAGWA V. STATE (1987) 4 NWLR (PT.640) 172 AT 175 AND 183

He finally submitted that the prosecution did not prove beyond reasonable doubt two(2) essential ingredients of the offence of armed robbery against the appellant having failed to establish that the alleged robbery was armed robbery,

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and that the appellant was one of the persons involved in the armed robbery. The prosecution did not discharge the burden of proof in accordance with Section 135 of the Evidence Act, 2011.
He urged the honourable Court to invoke Section 167(d) of the Evidence Act, 2011 (as amended) against the prosecution for withholding evidence. And to resolve issue one in favour of the appellant and acquit the appellant accordingly.
The Learned Counsel for the Respondent on the other hand submitted that the onus is forever on the prosecution to prove the guilt of the appellant and in so doing must comply with standard of proof laid in Section 135(1) and (2) of the Evidence Act, 2011 that is to prove all the ingredients of the offences beyond reasonable doubt. He referred to cases of;
OBIAKOR V. THE STATE (2002) SCNJ 193 AT 202
THE STATE V. AIBANGBEE (1988) 7 SC (PT.96) AT 132-133.

He argued that the prosecution does not require a magic wand in order for its proof to be beyond reasonable doubt. All that the prosecution is required to do simply is to put forward to the Court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused committing the alleged offence. He refer to the case; CHUKWUMA (AKA GODDLY) V. THE FEDERAL REPUBLIC OF NIGERIA (2011) 5 SCNJ 40 AT 45
He submitted that the prosecution has by credible evidence adduced at trial proved the case against the appellant beyond reasonable doubt and the trial Court was right in holding so.
He submitted that in our adversary system of criminal adjudication, the prosecution is required to prove his case against an accused person in any of the following ways; 1. Evidence of eye witness of crime. 2. Circumstantial evidence, 3. The confessional statement of the accused person. He referred to the cases of;
EMEKA v. THE STATE (2001) NWLR (PT.734) 666 AT 683.
IGRI v. THE STATE (2012) 37 WRN 1 AT 36 LINES 10- 20

He argued that the prosecution has proved this case by direct evidence of an eye witness.
He submitted that the prosecution has established the ingredients of the offence of armed robbery contrary to Section 298(c) of the Penal Code against the appellant and the learned trial judge was right in holding so.
He contended that the prosecution has proved that the offence of armed robbery was committed in the house of PW1 on 4th December 2014 at Opulega, Ankpa. The evidence of PW1 was clear and positive to the effect that robbers broke into his house on the aforementioned date. They were armed with guns and cutlasses and robbed him of various items.
He submitted that it is a fact that there is evidence of positive and unequivocal identification of the Appellant by PW1. The participation of the appellant is apparent from the evidence of PW1. The witness said he had the opportunity to see the co accused clearly and stated the roles appellant played while he also gave evidence of the fact that it was the appellant who locked him and his family in his room and that he saw him (appellant) clearly. In a situation such as the one painted above, the alibi of the appellant was logically demolished with the positive identification of the appellant by PW1 the victim of the armed robbery. He refer to the case of; SAMUEL ATTAH V. THE STATE (2010) NWLR (PT.1201) 190.
He submitted that the prosecution has established the ingredients of the offence of armed robbery. He refer to the case of; CHUKWUKA OGUDU v. THE STATE (2011) 12 SCNJ 1 AT 22.
He submitted that the prosecution has established the ingredients of the offence of armed robbery. He refer to the cases of;
CHUKWUKA OGUDU V. THE STATE (2011) 12 SCNJ 1 AT 22.
IKARIA V. STATE (2014) 1 NWLR (PT.1389) 539
ALABI V. STATE (1993) 7 NWLR (PT.307) 511.

He maintained that the appellant was properly and positively identified by the PW1. The PW1 was very emphatic in his identification of the appellant. He saw the appellant

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clearly. He was a victim of the robbery incident and gave direct eye witness account of the incident. He refer to the case of; IKARIA V. STATE (SUPRA).
He argued that the evidence of PW1 shows that the appellant, co-accused and one other person acted in concert with a common intention during the robbery and they left together. The offence of criminal conspiracy is committed the moment the parties agree together. He refer to the case of;GABRIEL ERIM V. THE STATE (1994) 6 SCNJ 104 AT 117.
He submitted that there is no duty on the prosecution to call any number of witnesses. He refer to case of;WAHABI ADEJOBI & ANR v. THE STATE (2011) 6 SCNJ 409 AT 430.
He submitted that the prosecution has not failed in its duty to make available to the Court material evidence. The fact that the prosecution did not call the police officer who arrested the appellant has not cast any doubt on its case.
He urge the Court to resolve the issue in favour of the Respondent.
It is trite that in criminal trials, the Prosecution has the duty, to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. This is a prerequisite precedent to establish the guilt and conviction of an accused person. The standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person. See:
AIGBADION v. STATE (2000) 4 SC (PT 1) 1;
HASSAN v. THE STATE (2001) 6 NWLR (PT.709) 286;

Under Section 139 (1) of the Evidence Act 2011 provides that whenever the commission of a crime by a person is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
In discharging the burden of proof, the Prosecution is required to produce a plausible and credible evidence which may be direct; or if circumstantial, it must be of such quality or cogency that a Court could safely rely on it in coming to its decision in the case. If the evidence adduced by the prosecution is adequate in implicating an accused person, the Prosecution would then have succeeded in proving the case beyond reasonable doubt. See the case of UBANI V. THE STATE (2003) 18 NWLR (PT.851) P.224. 
In the instant appeal, the Appellant was convicted on the offence of criminal conspiracy and armed robbery contrary to Section 97(1) and Section 298(c) of the Penal Code. The record shows that the trial Court relied on exhibit P1 and the evidence of PW1 in convicting the appellant.
Every person who is charged with criminal offence shall be presumed to be innocent until proved guilty. For the prosecution to succeed in a case of Armed Robbery under Section 298(c) of the Penal Code, the following ingredients must be established thus;
1. That there was a robbery or series of robberies;
2. That each robbery was an Armed robbery;
3. That the accused was one of those who took part in the armed robberies. See OLAYINKA V. STATE (2007) 9 NWLR (PT.1040) 561.
The appellant’s contention is that there is no credible and cogent or compelling evidence on record to establish that the alleged robbery was an armed robbery; and that the appellant was one of those who took part in the armed robbery.
Proof beyond reasonable doubt has in a number of cases been described as not being beyond all shadow of doubt. See the cases of;
MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 377.
SUNKANMI ADEBESIN V. THE STATE (2014) 9 NWLR PT.1413 
AT 621.
To establish conspiracy the prosecution must prove the following;
1. The agreement between 2 or more persons to do or cause to be done some illegal act or act which is not illegal by way of;
2. Each of the accused person participated in the conspiracy.

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As pointed out earlier that the trial Court relied only on the evidence of PW1 to convict the appellant.
Now, can it be said that the trial Court was right to have relied on the evidence of PW1 that fixed the appellant at the scene of the crime to convict the appellant.
Armed Robbery is defined as robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See, IBRAHIM V. STATE (2014) 3 NWLR PT.1394 PAGE 305.
While, Conspiracy on the other hand is when two or more person agrees to do or cause to be done;
(i) An illegal act; or
(ii) An act which is not illegal by illegal means, such agreement is called conspiracy.
Also, the Court can infer conspiracy and convict on it if it is satisfied that the actual persons pursued by their acts, the same object one performing one part of the act and the other performing the other part of same act so as to complete their unlawful design.
On whole, there is nowhere in it where the appellant stated or suggesting the inference that he committed the offences punishable under Section 97(1) and 298(c) of the Penal Code.
It is pertinent for me here to reproduce the evidence of the appellant at the trial for ease of reference:
“I was arrested on 6th December, 2014. I was arrested at Kogi State University gate Anyigba and brought to Ankpa Police Station. There, I was told I was arrested in connection with a robbery. I denied knowing the 1st accused. I also denied participating in any robbery my statement was recorded. The following day, I was taken to Lokoja…”
Here it is my view that, the failure of the prosecution to tender the statement wherein he raised the defense of alibi and the arms used and/or recovered from the accused persons is fatal to the prosecutions case. See PEOPLE OF LAGOS STATE VS UMARU (2014) 7 NWLR (PT.1407) AT 611-613.
On whether the appellant was among those who took part in the robbery, the trial Court solely relied on the evidence of PW1 in identification of the appellant.
It is trite law that in ascribing probative value to the evidence of a witness whose identification turn out an accused, the Courts are warned to guard against mistaken identity. As guide, the Courts are enjoined to take into consideration the following factors;
i. The circumstances in which the eye witness saw the accused.
ii. The length of time the witness saw the accused.
iii. The lighting condition;
iv. The opportunity of close observation; and
v. The various contacts between the accused and the eye witness.
See the cases of;
AMOSHIMA V. STATE (2009) 32 WRN 49.
NDIDI V. STATE (2005) 17 NWLR (PT.953) PG 17.

PW1 (the eye witness) who said he saw the 2nd accused testifies thus;
They were armed with guns, cutlasses and knife. The ordered me and my family members to lie down (sic) The remaining two ransacked my room and took away two phones, forty thousand naira and generator set One of them marched me to where I packed the car On opening the door, the inner light of the car same on and so I saw the 1st accused when he entered the car and sat, after starting the car engine, I was again taken back into the room at gun point. The 1st accused drove the car out of the premises. The other two locked me and my family members inside the bedroom. The first accused told me that the robbery was their third to my house and that someone sent them. The robbers went away with door key. (underline mine for emphasis).
The above testimony does not link the appellant to the said robbery. Therefore this rendered his evidence uncertain. Under cross examination PW1 said he got to know the appellant on the day of the robbery on 4th December, 2014. And that the appellant was the person that locked him inside the bedroom, it is pertinent to say that PW1 contradict himself with the above statement.

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In cases of robbery it is required that proper identification of the real culprit be made, because usually there may be doubt as to who was seen in connection with the offence. See NWATURUOCHA VS THE STATE (2011) LPELR -SC.197/2010.
In the instant case identification parade would have been necessary since the victim (PW1) did not know the accused before his acquaintance with him during the commission of the crime. See the cases of;
OKIEMUTE VS STATE (2016) 15 NWLR (PT.1535) PG 297 AT 318.
ADEBAYO V. STATE (2014) 12 NWLR (PT.1422) AT 639.

At the risk of repetition let me reproduce part of PW1 (the eye witness) evidence in Court for emphasis;
“One of them marched me to where I packed the car. On opening the door, I was again taken back into the room at gun point.
It is my view that the time within which PW1 was marched to open a car’s door is very short. So also the time PW1 had contact with the appellant. The witness did not say that he was able to recognize the appellant but he said the appellant “was the person who locked us inside the bedroom and so I saw him clearly at that point.Therefore, from all the above, it is my view that identification parade is necessary in the instant case.
PW1 also said on opening the car door, he was taken back into the room at the gun point. Also, the other two accused persons locked him and his family members inside the bedroom.
PW1 in his evidence did not explain clearly how and where they met with the appellant and the appellant was the person that locked him inside the bedroom, since it is his evidence as earlier shown that he (PW1) was lying down during the operation but the robbers asked me to stand up several times.
Also PW1 said the accused persons had bright torch light on the day of the incidence, he did not state the lighting condition of the environment since the robbery took place in the night.
It is my view that the evidence of PW1 on the account and identification of the appellant (among those who took part in the alleged armed robbery) fell below the requirement of the law. The evidence against the appellant is not clear, convincing, cogent and compelling.
On the whole the prosecution failed to prove beyond reasonable doubt that the appellant was one of those who took part in the armed robbery. This Issue is also resolved in favor of the Appellant.
ISSUE TWO
Whether having regard to the evidence on record, the Learned trial judge was right when he failed to consider the defence of alibi and held that the alibi does not avail the appellant.
Learned counsel to the Appellant contended that the Learned trial judge did not avail the appellant when he held that alibi does not avail the appellant.
He argued that the appellant raised the defence of alibi at the earliest opportunity and same was investigated by the Police which investigated report the prosecution failed to tender as it was not favourable to its case.
He submitted that the prosecution has a duty to tender documents and statement that is favourable to an accused person. He refer to the case of; THE PEOPLE OF LAGOS STATE V. UMARU (2014) 7 NWLR (PT.1407) 587 AT 623.
He maintained that the appellant testified for himself as DW3 at pages 60 and 61 of the record. His evidence thereon was not contradicted, challenged or discredited under cross examination. DW2 also testified and gave evidence in chief and neither the prosecution nor the co-accused person cross examined him. He refer to pages 59 to 61 of the printed record.
He submitted that the said evidence of alibi is deemed admitted and that it is improbable for the appellant to have participated in the robbery in the circumstance, it is the duty of the Court to act on unchallenged evidence by the opposite party who had the opportunity to do so. He refer to the case of; IBWA V. IMANO NIG LTD & ANOR

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(2001) FNLR (PT.440) 421 AT 443.
He submitted that the appellant’s evidence on alibi if properly considered, sufficiently raised reasonable doubt against the prosecution’s case and sufficiently to entitle the appellant to an acquittal.
He argued that the appellant’s evidence on alibi was not rebutted or disproved anywhere on record by the prosecution. The trial Court nonetheless refused to act on same and thereby occasioned a miscarriage of justice.
He submitted that reliance placed on whether the reliance placed on Exhibit P2 by the trial Court at pages 83 and 84 of the record on whether the appellant timeously raised his alibi is wrong and occasioned a miscarriage of justice.
He therefore urge the honourable Court to resolve the issue in favour of the appellant.
The Learned Counsel to the Respondent submitted that the word Alibi means elsewhere and since it is a matter particularly within the knowledge of an accused if he was at some particular place other than where the prosecution says he was at any material time, what has been called evidential burden i.e. burden adducing or eliciting some evidence tending to show this rests on him. He refer to the cases of; YANOR V. THE STATE (1965) l ALL NLR 193, OTUNBA F. E. SOWEMIMO & 1 OR V. THE STATE (2004) 11 NWLR (PT.885) 515 AT 526 PARAS H.
He submitted that there is a duty on the appellant to furnish the necessary information from which his where about at the crucial time can be checked and where he fails to discharge that basic duty he cannot avail himself of the defense. Rather the prosecution by sufficient credible, material evidence has proved that the appellant and his cohort committed the crime for which he was convicted.
He maintained that the appellant defense which was raised at the trial, at best is an afterthought and an attempt to pervert the course of justice. It is a feeble defense which should not be allowed to stand. The best defense and evidence of alibi is one pleaded at the first opportunity and not at the time of trial. He referred to the case of; OTUNBA F. E. SOWEMIMO & 1 OR v. THE STATE (SUPRA) 419-420 PARAS H – B.
He submitted that where an accused is fixed at the scene of crime, his alibi is logically demolished. In such instance there would be no need to investigate whatever alibi he has raised and therefore non investigation of alibi by the police in such cases is not fatal to the prosecutions case.
He refer to the case of; SAMUEL ATTAH V. THE STATE (2010) NWLR (PT.1201) 190.
He submitted that it is misconceived to say that the respondent failed to produce, tender the report of the investigation of the alibi and therefore that the prosecution has concealed evidence thereby offending Section 169 of the Evidence Act. The appellant had liberty, if such report exists, to cross examine the prosecution witnesses on same and even gone ahead to tender same. There is no duty the prosecution to tender any report more so that the appellant was positively identified fixed at the scene of the crime by the victim of the robbery and the appellants’ alibi dislodged.
He maintained that the trial judge extensively considered the alibi raised by the appellant in his judgment and rejected same having weighed the alibi against the evidence adduced by the prosecution, particularly PW1. He referred to pages 84 to 86 of the printed record.
He urge the Court to resolve same in favour of the respondent.
A Court is under a duty to consider any defence open to an accused or raised by an accused before convicting on a particular charge. See.
ARABI V. THE STATE (2001) 12 WRN 158 CA
OFORLETE V. THE STATE (2000) 7 SC (PT 1) 80-85
LADO V. STATE (1999) 9 NWLR (PT.619) 369 SC
.
Alibi is a defence raised by an accused person, it is a complete defence if found to be true. The defence simply means that when the offence was committed the accused person was somewhere else, so he certainly could not have committed the offence. Alibi is within the personal knowledge of the accused person and so it is his duty to establish it.

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Moreso, once the accused raises the plea that he was elsewhere and furnishes the police with the particulars of the place and the names of the person who was with him at that time, the police has duty to disprove the alibi if they do not accept it. The accused need not prove the defence of alibi beyond reasonable doubt. See: DOGO V. STATE (2001) 3 NWLR (PT.699) 192.
In the instant Appeal, the defence of alibi by the Appellant. The Appellant claimed that on the 4th December 2014 when the robbery was allegedly committed, he was at Anyigba with his sister. The sister also testified as DW2 to confirm the alibi raised by the Appellant.
The Court had a duty to carefully consider any defence put forth by an accused. See LADO V. STATE (SUPRA).
In rejecting the alibi raised by the Appellant, the Learned trial judge said.
“his defence of alibi was destroyed logically by the testimony of PW1. PW1 maintained that the second accused was not even passive member of the criminal gang on the fateful day as he it was that locked him and his household in his bedroom while they ransacked the house.”
It was wrong for the trial Court to dispense with the plea of alibi to convict the appellant on the ground that the defence of alibi does not arise where there is an eye witness. The evidence of eye witness is not conclusive. The evidence has to be considered in the light of Police investigation of the plea of the accused, as the eye witness may be mistaken in his identity. See. SANI V. THE STATE (2015) 6 SCM @ 209.
It would be different thing if the accused was caught in the commission of the offence in which case it will be illogical to plead alibi since he cannot be in two places at the same time.
There is another aspect of the case of the Appellant not properly examined by the trial Court. The Appellant maintained that when he was at the police station where he made a statement. PW2 said that when the case was transferred to him on 10th December 2014, the Appellant was brought to him with a statement. (see page 40).
I find as a fact that before 10th December, 2014 when Exhibit A was made, the Appellant had made a statement. This statement was not tendered and no explanation was offered as to why it was not tendered. In the instant Appeal therefore, the prosecution had a duty to make the said statement available to the Court. The Appellant might have raised his defence therein and the Court would have had the opportunity to examine it.
This issue is resolved in favour of the Appellant.
ISSUE THREE
Whether the Learned trial Judge properly evaluated the evidence having regard to the circumstances of this case.
Learned counsel to the Appellant contended that the trial Court failed in its responsibility to properly evaluate the evidence when it wrongly accepted the prosecution evidence upon wrong perception and neglected to give due consideration to the appellant’s evidence and defence.
He submitted that with deference to the trial judge the testimony of PW1 under cross examination is contradictory, not probable, not credible and therefore not capable of destroying the alibi of the appellant in the circumstance of the evidence on record. He referred to pages 28 to 29 of the printed record.
He contended that the trial judge ought to have considered the evidence of identification of the appellant by PW1 with caution. He refer to the case of; IKARIA V. STATE (2014) 1 NWLR (PT.1389) 639 AT 653. AND PAGES 85 TO 88 OF THE PRINTED RECORD.
He submitted that there is nothing on record to induce the belief or satisfaction of the trial Court that the prosecution proved beyond reasonable doubt that the appellant participated in the armed robbery. He referred the Court to the cases; BOZIN V. STATE (SUPRA) AT 471.
He contended that the complainant, i.e (PW1) ought to inform the police at the earliest and first opportunity some of the identifying features or description of the appellant not merely as a remote possibility but as compelling probability. He referred the

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Court to the cases of;
BOZIN V. STATE (SUPRA) AT PAGE 470
OLOWOYO v. STATE (2012) 17 NWLR (PT.1329) 346 AT 384-385

He further submitted that the trial judge did not give any due consideration to the evidence and defence of the appellant particularly when the said defence was not discredited by cross examination.
He urge the Court to allow this appeal and acquit the appellant accordingly.
On the other hand the learned counsel for the respondent submitted that the trial judge clearly evaluated the evidence led before him in arriving at the conclusion that the appellant and co-accused were properly identified. He referred to pages 28 to 30 and page 85 of the printed record.
He submitted that the evaluation of evidence are primary duties of the trial Court which had the opportunity of seeing, hearing and assessing witnesses and where the findings of facts before it are not perverse the appellate Court ought not interfere with it. He referred to the cases of;
FRN V. IWEKA (SUPRA) 826
GODWIN CHUKWUMA (AKA GODDY) V. THE FRN (SUPRA)
COSMAS EZUKWU V. PETER UKACHUKWU (SUPRA) AT 256 PARAS B-D

He maintained that the Courts will also not interfere with the findings of Lower Court where it has not occasioned a miscarriage of justice. He referred to the cases of;
JUA V. THE STATE (SUPRA) 247;
ALI PINDER KWAJAFFA v. BANK OF THE NORTH (2004) 8 NWLR (PT.889) 146 AT 176-177 PARAS G  B.

He urged the Court to resolve this issue in favor of the Respondent and affirm the judgment of the Lower Court.
I have earlier said in this judgment that the Appellant was convicted for the offence of criminal conspiracy and armed robbery contrary to Section 97(1) and Section 298(c) of the Penal Code. The burden is on the prosecution to lead evidence to prove the ingredients of the offences charge beyond reasonable doubt in order to secure the conviction of the accused.
The trial Court has the duty to properly evaluate the evidence adduced before it. The mere recital of evidence called is not tantamount to assessment and evaluation of such evidence, there must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other See the cases of;
BELLO VS STATE ALL FWLR (PT.395) PG.702 AT 713.
BENJAMIN V. ACCESS BANK PLC 
(2014) 9 NWLR PT.1411 AT 136.
In the instant case it is on record that the appellant argued that he did not participate in the alleged armed robbery and the prosecution did not prove that he (appellant) participated in the robbery, it is important to produce the testimony of the Appellant at page 60 lines 4-8 of the printed record inter alia as follows;
“On 4th December 2014, I was with my sister residence at professors quarters Kogi State University, Anyigba. I came there on 2nd December, 2014. I visited my elder sister, Victoria Abraham at the professors quarters. I left there on 8th December 2014.”
The above observation indicate to me that the appellant raised a defense that he was somewhere at the time of the commission of the offence. The evidence of PW1 on the other hand is that he saw the appellant during the robbery. It is trite law that all defenses raise by the accused person/ no matter how weak deserved consideration by the trial Court. In the instant case the trial Court did not consider at all the appellant’s defense. Evaluation of evidence entails more than the judge saying “I belief” or “I didnt believe” a witness. I have earlier said in this judgment that there must be on record the reason why the Court arrived at its conclusions for preferring one evidence to the other. See EMIRATE AIRLINE VS MEKWUNYE (2014) LPELR CA/L/124/2010.

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In the instant case, in addition to all what I have said under issue one; there is no reason on record why the trial Court arrived at its conclusions for preferring the evidence of the respondent to that of the Appellant.
It is trite law that the offence of conspiracy is complete when it is shown that there was a formation of scheme or agreement between the parties before the doing of the act for which the conspiracy is formed. See TANKO VS STATE (2008) 16 NWLR (PT.1114) PG 597 AT 638. In the instant case there is no evidence on record to show that there was an agreement between the parties before the alleged armed robbery, and for the trial Court to infer the alleged criminal conspiracy.
Also the finding of the trial Court that the appellant retracted the alleged confessional statement ascribed to him is perverse in view of the decision of the Supreme Court in AIGUOREGHIAN VS STATE (SUPRA).
It is my view that the trial judge did not properly and adequately evaluate the evidence adduce by the parties before him.
It is trite law that any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. See BASSIL VS FAJEBE (2001) 11 NWLR (PT.725) PG. 592 AT 608.
This issue is also resolved against the respondent and in favour of the Appellant.
Having resolved all the three issues in this appeal in favour of the Appellant there is merit in this appeal and it is hereby allowed.
The judgment of the Trial Court delivered on the 8th of June, 2010 is hereby set aside.
The appellant is accordingly discharged and acquitted.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, ABDU ABOKI, PJCA. I am in agreement with the reasoning and conclusion and orders reached therein.
TANI YUSUF HASSAN, J.C.A.: I read before now the judgment just delivered by my learned brother, Abdu Aboki, PJCA.
I agree with the conclusion and abide by the order therein.

Appearances

A. O. Igeh, Esq. For Appellant

AND

Joel Olusegun Olorunbogun, Esq. (Solicitor General) with him, Hawa Eleojo Yusufu, Esq. (D.D.P.P). For Respondent

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