Tope Adesoye v. The State

This is an appeal against the judgment of the Court of Appeal, Ilorin Judicial Division delivered coram Honourable Justice Chidi Nwaoma Uwa, JCA, Honourable Justice Hamma Akawu Barka, JCA and Honourable Justice Boloukuromo Moses Ugo, JCA on 28th of February, 2018.

The Appellant herein was arraigned on a three-count charge before the High Court of Justice, sitting in Ilorin. The charge is reproduced hereunder thus:

COUNT ONE
That you, Tope Adesoye, along with two others (at large), on or about 5/9/2014 at Agamo, GRA, Omu – Aran, Kwara State, within the jurisdiction of this Honourable Court, conspired to commit an illegal act to wit; while armed with gun conspired to rob one Engr. Ogundipe, Deborah Ogundipe and Olaoye Lydia and dispossessed them of their money and other valuable and thereby committed an offence contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act CAP R11 Laws of the Federation of Nigeria 2004.
COUNT TWO
That you, Tope Adesoye, along with two others (at large), on or about 5/9/2014 at Agamo, GRA, Omu-Aran

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Kwara State within the jurisdiction of this Honourable Court while armed with a gun robbed one Engr. Ogundipe, Deborah Ogundipe and Olaoye Lydia and dispossessed them of their money and other valuables and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap R11 Laws of the Federation of Nigeria 2004.
COUNT THREE
That you Tope Adesoye along with the two others (at large) on or about 5/9/2014 between Ilorin/Ajase-Ipo Road, Kwara State within the jurisdiction of this Honourable Court commit an illegal act to wit: was found to be in illegal possession of firearms and you thereby committed an offense contrary to Section 3(1) of the Robbery and Firearms (Special provision) Act CAP R11 Laws of the Federation of Nigeria 2004.

The Appellant pleaded not guilty to the three count charge and in proof of their case, the Respondent called 5 (five) witnesses in all.

The PW1, a Sergeant attached to the Special Anti-Robbery Squad (SARS) testified as the Exhibit Keeper and stated that the exhibits recovered from the Appellant are two cut-to-size short guns, 9 cartridges, a criminal charm and the sum

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of N88,000.

PW2 testified that he is a taxi driver and that the Appellant and another man boarded his car on the 6th day of September, 2014. The witness stated that there were 4 (four) passengers in all in the vehicle and that at about 8 pm, he (PW2) drove past a police checkpoint and the vehicle was stopped and they were searched. Suddenly, the person with the Appellant ran out and absconded into the bush and the police arrested the Appellant and found in the bag he was carrying all the items listed by PW1. PW2 stated they were all arrested and detained at the police station and that while they were in the police cell, the Appellant confessed to him that he and some others had gone to Omu-Aran to rob and the Appellant informed the police that he (PW2) and the other passenger were innocent and should be released. The witness stated that they were all taken to the place where the robbery took place at Omu-Aran and the Appellant was identified while the PW2 and the other passenger were not and they were subsequently released.

The PW3 testified that on the 5th day of September, 2014 at about 7.30 pm, three armed robbers invaded her home and demanded for

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money. PW3 testified that the robbers threatened to rape her two daughters but she pleaded that they should take her life instead and that was when she saw the face of the Appellant. PW3 said she easily recognized the Appellant because she had been seeing him around in the neighbourhood prior to the incident. The witness said that she identified the Appellant when the Police brought him and PW1 and the other passenger.

The PW4 and PW5 are husband and wife and they live with PW3. The witnesses narrated the armed robbery based on what they were told since they were not in the house when it took place. PW4 recognized the Appellant and stated that they had worked together at Landmark University and that the Appellant had begged for forgiveness.

PW6 was the team leader of the Police at the checkpoint where the Appellant was arrested. The witness narrated how everything happened including the fact that the partner of the Appellant fled into the bush.

The PW7 testified that she lived in the house that was robbed and it was she who was at the gate when the robbers pushed her aside and forced their way in.

The PW8 testified that he is the

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Investigation Police Officer and he narrated everything he discovered during his investigation. The witness testified that the Appellant was identified by most of the witnesses as the person who robbed and he sought to tender the confessional statement of the Appellant who opposed on the ground of involuntariness based on torture.

A trial within trial was conducted and the confessional statement was rejected on the grounds that it was inadmissible and it was not admitted in evidence.

In his defence, the Appellant testified for himself as DW1 and stated that he had travelled to Otun Ekiti to collect his contribution money which was N200,000 and that it was on his way back that he was arrested at the checkpoint. The defence was thereafter closed.

When delivering his judgment, the learned trial Judge held that the Respondent proved counts 1 and 2 of the charge beyond reasonable doubt but failed to prove count 3. The Appellant was then sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal raising 6 (six) Grounds of Appeal. And after hearing the appeal, the Court of

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Appeal in its judgment held that an identification parade and the investigation of the alibi in this case would have been an absolute waste of time. The Court further stated that there were eyewitnesses who saw the Appellant at the scene of the crime and recognized him. The appeal was dismissed for lacking in merit and the judgment of the lower Court was affirmed.

Determined to prove his innocence, the Appellant has now appealed to this Court viahis Notice of Appeal dated the 18th day of May 2018 raising 4 (four) Grounds of Appeal.

The Appellant also filed his Appellant’s Brief of Argument dated the 11th day of September, 2018 and settled by Taiye Oniyide Esq. In the said Appellant’s Brief of Argument, these 3 (three) issues were distilled for the determination of the appeal as follows:
1. Whether the lower Court was right when they affirmed the decision of the trial Court that convicted and thereafter sentenced the Appellant to death for the offence of criminal conspiracy punishable under Section 6(b) of the Robbery and Firearms Act Cap R11 Laws of the Federation of Nigeria 2004.
2. Whether the lower Court was right when they affirmed the

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decision of the trial Court that convicted and thereafter sentenced the Appellant to death for the offence of armed robbery punishable under Section 1(2) of the Robbery and Firearms Act Cap R11 Laws of the Federation of Nigeria 2004.
3. Whether the Lower Court was right when they affirmed the decision of the trial Court that disregarded the defence of alibi raised by the Appellant.

On the first issue, the learned counsel for the Appellant submitted that the lower Court failed to analyze, evaluate or make any definite finding either for or against the Appellant on the issue of criminal conspiracy and this has occasioned a grave miscarriage of justice and denial of fair hearing as the Appellant was not given the opportunity to be heard. The case of EDET VS. STATE (2008) 14 NWLR (PT. 1106) PAGE 52 @ 67 PARAGRAPHS B – C was cited in support.

It was submitted that the lower Court did not consider the argument and submission of the Appellant that the other two alleged conspirators were never found and neither were they tried and as such the Appellant has been alleged to have conspired with unknown persons. It was argued further that the Appellant did

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not know the persons with whom he was alleged to have committed the offence levied against him and he reminded this Court that the confessional statement wherein he allegedly admitted knowing the persons was rejected by the trial Court as involuntary.

It was argued that the allegation of conspiracy was a mere assumption and that the Respondent failed to establish the issue of criminal conspiracy whether directly or by inference and also that the Respondent did not show the specific role or part played by the Appellant in the alleged conspiracy. Reference was made to the case of GARBA VS. C.O.P. (2007) 16 NWLR (PT. 1060).

On issue two, the learned counsel for the Appellant argued that the Respondent failed to prove the ingredients of armed robbery against the Appellant. It was submitted that there was no concrete evidence on record that the Appellant participated in the robbery as he had denied vehemently. It was submitted the testimonies of PW2 – PW8 were denied by the Appellant and so the Appellant cannot be convicted based on them. Reliance was placed on the cases of AFOLALU VS. STATE (2010) 6-7 MJSC 187 @ 219 – 220 PARAS G – A; EYO VS. STATE

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(2014) 1 NWLR (PT. 1335) PAGE 324 @ 340 PARA C and ORJI VS. STATE (2008) LPELR 2767 SC.

On the third issue the learned counsel for the Appellant submitted that the Appellant raised his alibi with the police but that the police refused to investigate it. It was submitted that it is trite law that when an accused raises the defence of alibi, the onus lies on the Prosecution to investigate it. Reference was made to the case of IREGU VS. STATE (2013) 12 NWLR (PT. 1367) PAGE 92 @ PAGES 128 – 129 PARAS H – A.

It was argued that in cases attracting capital punishment, it is incumbent upon the trial Court to exhaust all defenses raised by the Appellant. Reference was made to the case of EDOHO VS. STATE (2010) 42 NSCQR 451 @ 484 – 485.

The Court was urged to set aside the judgment of the two lower Courts and allow the appeal.

In response, the Respondent filed their Respondent’s Brief of Argument dated the 22nd day of June, 2021 and settled by Dr Wunmi Bewaji. In the said Respondent’s Brief of Argument, a sole issue was distilled for the determination of the appeal thus:
Did the Prosecution prove the offences of conspiracy to commit armed robbery

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and armed robbery against the Appellant beyond reasonable doubt as held by the trial Court and affirmed by the lower Court?

On this issue, the learned counsel for the Respondent submitted that they proved the guilt of the Appellant beyond reasonable doubt and that they also proved the ingredients of the offence. It was argued further that it is the law that there are three major ways of proving the guilt of an accused person which are: (a) confessional statement, (b) eyewitness testimony, and (c) circumstantial evidence.

The Respondent argued that there were eyewitnesses who testified against the Appellant confirming that there was a robbery, the robbers were armed with weapons and it was indeed the Appellant that attacked them with his gang members. It was submitted further that the testimonies of the eyewitnesses were never denied, challenged or contradicted by the Appellant at the trial. Reference was made to the case of OFORLETE VS. STATE (2000) 12 NWLR (PT. 681) PAGE 1.

It was argued that the Appellant’s oral confession was well corroborated by credible and compelling evidence by the prosecution witnesses and the people he was arrested

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alongside with. It was also submitted that it was evident from the testimonies of PW3 and PW7 and the confession of the Appellant to PW4, PW5, PW6 and PW8, the eye witness account of PW6 who was there when the Appellant’s criminal confederate jumped into the bush and ran away.

It was submitted further that the decision of the lower Court on the offence of conspiracy was never challenged and therefore, it subsists.

The learned counsel for the Respondent argued that the defence of alibi raised by the Appellant was weak and porous compared to the strong and cogent evidence of the prosecution and that there was no need for the police to investigate it.

On whether the Respondent discharged the burden of proof regarding the offences charged, it was argued that the trial Court held that the offences of conspiracy and armed robbery were proved beyond reasonable doubt.

It was further argued that the Appellant abandoned ground 6 of his ground of appeal having formulated no issue from it and that the lower Court had held that the five issues before it were duplicitous and yet the Appellant has not challenged that before this Court.

It was argued

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further that regardless of the number of issues formulated by the parties, the appellate Court has the power to formulate, modify or reframe the issues for determination in order to accentuate the real issue in controversy in the interest of justice. Reliance was placed on the case of GOVERNMENT OF KANO STATE VS. EFCC (2018) 9 NWLR (PT. 1625) 443 AT 457 PARAS E – F.

In conclusion, the learned counsel for the Respondent submitted that the Appellant having failed to show any special or exceptional circumstances or prove any miscarriage of justice or show evidence that the decision herein was perverse, this Court should not set aside the concurrent findings of the two lower Courts.

The Court was then urged to dismiss the appeal and uphold the concurrent judgment of the two lower Courts.

RESOLUTION OF THE ISSUES
I have extensively read the arguments of learned counsel for the Appellant and the Respondent respectively and I shall now proceed to resolve the issues in controversy in the instant appeal and in order to carry out this exercise I shall distill 2 (two) issues for the determination of the appeal as follows:
1. Whether the learned

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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 offence of armed robbery contrary to Section 6(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004 without an identification parade as required by the law and without considering the defence of alibi raised by the Appellant.

ISSUE ONE
Whether the learned trial Judge was right when he convicted the Appellant for the offence of criminal conspiracy.

The term “conspiracy” under the English common law simply means an agreement of two or more persons to do an act or agree to do an act which is an offence. In other words, it is the agreement to do an act which amounts to an offence or to commit an offence. Conspiracy is the meeting of minds of two or more persons to carry out an unlawful purpose act or to carry out a lawful purpose in unlawful way or by unlawful means. The purpose of the meeting of the two or more minds must be to commit an offence. See R V ASIRINALL (1876) 2 QBD 48 AT

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58; DABOH VS. STATE (1977) 5 SC and ODUNEYE VS. STATE (2001) 2 NWLR (PT. 697) 311@ 332.

For the offence of conspiracy, the Respondent is expected to prove that there was an agreement between the Appellant and persons known or unknown to carry out an unlawful or illegal act or a legal and unlawful act by illegal or unlawful means. In the case of ABDULLAHI VS. STATE (2008) 5-6 S.C. (PT. 1) 1, it was held that:
“It is therefore the duty of the prosecution, in order to discharge the burden of proof placed on it by law to adduce evidence to establish the following ingredients of the offences:-
(a) an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; and
(b) that illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality – conspiracy.
In the celebrated case of NJOVENS & ORS VS. STATE (1973) LPELR – 2042 (SC) this Court held per Coker, JSC on page 57 that:
“The overt act or omission which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the

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only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick and Ribuffi (1929) 21 C. App. R. 94. They need not all have started the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others.
The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is, therefore, the duty of the Court in every case of conspiracy to

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ascertain as best as it could the evidence of the complicity of any of those charged with that offence.”

The learned counsel for the Appellant had argued in his brief of argument that the lower Court failed to analyze, evaluate or make any definite finding either for or against the Appellant. It was also argued that the Respondent did not show the specific role or part played by the Appellant in the alleged conspiracy as required by law.

First and foremost, I have read through the Record of Appeal and the testimonies of the witnesses. The PW2, the taxi driver in whose car the Appellant was arrested, testified at pages 70 – 72 of the Record of Appeal that he saw the Appellant alight from a bike along with another unidentified person and they both boarded his vehicle saying they were going to Ilorin. The witness also testified that when they were stopped by the Police and asked who owned the bag, the Appellant and his “friend” claimed ownership of the bag and upon seeing the contents of the bag, the “friend” of the Appellant took to his heels. The witness further stated that while they were both in detention, the Appellant had confessed that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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“they went to Omu-Aran to rob. I begged him to please confess for the police in the morning to save me from this problem. In the morning the police brought us out of the cell and took us upstairs, the accused then told the Police that I and the man who first entered my car at Omu-Aran don’t know anything, that he boarded my vehicle and I didn’t know anything about him and his friend that escaped. We were taken back to Omu Aran to the house where the robbery took place, the people of the house identified the accused and they said they don’t know me and the other passenger.”

The PW3 also testified at page 72 of the Record of Appeal that:
“three men came to our house…”
“the 3 boys told us to He face down and they demanded for the money brought into the house…”
“The 3 robbers came on an Okada…”

Just to mention a few instances, the Respondent’s witnesses had all consistently and continuously testified that the Appellant and two others had acted in concert in carrying out the offence. However, when given the opportunity to cross-examine and discredit the witnesses and their pieces of evidence, the Appellant failed to ask salient

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questions that would destroy their case built against him. Neither the Appellant nor his counsel sought to establish the fact that the Appellant was not part of the robbers and they did not raise questions as to the number of the supposed armed robbers. The Appellant also did not discredit the testimony of PW2 where he stated that the Appellant boarded the vehicle with his “friend” and also when it was stated that the Appellant’s “friend” absconded into the bush.

Now back to the main issue. Can the Appellant be convicted of conspiracy with unknown and unnamed persons?
In the case of ENAHORO VS. QUEEN (1965) LPELR – 25238 (SC) (PP. 12 – 13 PARAS. C), it was held per Idigbe, JSC that:
“… if in the course of a trial, the case for the prosecution suggests that a conspiracy existed between the accused and persons unknown and there is evidence which the Court accepts as prim a facie ground for believing in the existence of such a conspiracy, the provisions of Section 11 of the Evidence Act, Cap. 62 will apply. That Section 11(1) reads; Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or

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an actionable wrong, anything said, done or written by anyone of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it; but statements made by individual conspirators as to measures taken in the execution or furtherance any such common intention are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made. (2) Evidence of acts or statements deemed to be relevant under this section may not be given until the Court is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy to which they relate.”

It is to be noted that though one person cannot commit the offence of conspiracy, one person can be rightly charged with the offence of conspiracy if it is expressly stated in the charge that he conspired with others known or unknown, at

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large or dead. See generally, the cases of MOHAMMED VS. STATE (2010) LPELR – 9019 (CA) and OSHO VS. STATE (2011) LPELR – 4804 (CA).
Where there is evidence to support the conviction of a sole accused person for conspiracy, an appellate Court will not disturb the conviction. See OGUGU VS. STATE (1990) 2 NWLR (PT. 134) 539, 553 and MARTINS VS. STATE (2020) 5 NWLR (PT. 1716) 58, 78 – 79.

The learned counsel for the Appellant kept arguing in his brief of argument that the lower Courts did not properly consider, analyze, appraise or evaluate the Appellant’s evidence. A quick read through the testimonies of the Respondent’s witnesses and their testimony under cross-examination found at pages 70 – 83 of the Record of Appeal shows that the Appellant proffered little or nothing to be evaluated. The Appellant simply said he did not know the co-conspirators yet when the witnesses kept saying he was seen, acting in concert with two others, he kept mute.

It is in the light of the foregoing that I resolve this issue against the Appellant. The concurrent judgments of the two lower Courts are hereby affirmed.

The Appellant cannot be heard crying that his

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right to fair hearing was breached when he failed to adequately speak about the issue of conspiracy when given the opportunity to do so. In AYORINDE & ORS VS. SOGUNRO & ORS (2012) LPELR – 7808 (SC) (PP. 17 PARAS. D), this Court held per Rhodes-Vivour, JSC, that:
“Evidence in chief is an opportunity for the plaintiff and his witnesses to state their case on oath. Cross-examination is to test the credibility of testimony given in evidence in chief, while Re-examination is an opportunity for the witness to restore credibility to his testimony.”

In the case of FMBN & ANOR VS. OWODUNNI (2018) LPELR – 44556 (SC), fair hearing was described thus:
“By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality. Fair hearing means a trial conducted according to all the

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legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi criminal Panel or body. See I. R. ARIORI & ORS V MURAINO B. O. ELEMO & ORS (1983) 1 SC 13 AT23 – 24 JSC. 2. Also, in the case of CHIEF J. L. E. DUKE VS. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 1 NWLR (PT. 1356) 347 AT 366 B – C, it was held per Galadima, JSC that:-
“The principle of fair hearing is that both sides must be given an opportunity to present their respective cases… It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.” In other words equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a Party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and

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will be vacated or set aside forthwith. See NICHOLAS CHUKWU JEKWU UKACHUKWU VS PDP & ORS (2014) 2 SCM 2002 AT223 F – D – 224 A – H.

The term fair hearing is a recurring decimal in criminal cases as it is a fundamental right guaranteed to citizens under the Constitution, and a breach of which will nullify the proceedings in favour of accused person. It is very easy for accused persons to come crying and complaining to an appellate Court that their right to fair hearing has been violated. But “fair hearing” is not just an expression of mere rhetoric or empty verbalism. It cannot be construed outside the facts, and a party alleging the breach of fair hearing must show clearly that the said right is violated or breached. See GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 SC. In other words, it is not enough for a party alleging such a breach to merely mention fair hearing, and expect this Court to automatically side with him and determine the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading, as this Court made very

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clear. In the case of SABURI ADEBAYO VS. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (PT. 1085) 201, it was held that:
“Circumstances where a party cannot be heard to complain of being denied the right to fair hearing were stated by the Apex Court as follows: “I said it in the past and will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party, who refuses or faits to take advantage of the fair hearing process, created by the Court, cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do, is to take the horse to the water, he cannot force it to drink the water. The horse has to do that by itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter.”

I firmly

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believe that the trial Court did not breach the right of fair hearing of the Appellant as alleged by the Appellant because from the Record of Appeal, the Appellant through his counsel failed to discredit the evidence built against him by the Respondent when given the opportunity during cross examination. The Appellant did not attack and puncture the testimonies of the witnesses, rather he lazily denied same in his defence and this cannot solidly discredit the evidences against him.

On this note, issue one is therefore hereby resolved against the Appellant.

ISSUE TWO
Whether the learned trial Judge was right when he convicted and sentenced the Appellant to death for the offence of armed robbery contrary to Sections 6(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004 without an identification parade as required by the law and without considering the defence of alibi raised by the Appellant.

The learned counsel for the Appellant has argued that the Respondent failed to prove the ingredients of armed robbery and therefore was not entitled to a grant of conviction against the Appellant

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by the two lower Courts.

In the case of AFOLALU VS. STATE (2010) LPELR – 197 (SC) (PP. 26 PARA. B), this Court held per Adekeye, JSC that:
“The essential ingredients of the offence of armed robbery are as follows:
(a) That there must be robbery or series of robberies.
(b) That the robbery or each robbery was an armed robbery
(c) That the accused was one of those who took part in the armed robbery.”

From the testimonies of the PW2 – PW8, it is clear that there was a robbery. Also, PW3 who was present at the time of the robbery had testified that the three robbers that invaded their home were armed with guns. So ingredient numbers one and two have been resolved.

The third and the most important ingredient is: was the Appellant one of those who participated in the armed robbery?

The Appellant, during his testimony, raised the defence of alibi and has now stated before this Court that the trial Court was wrong to have not considered this defence as the police had failed to investigate the alibi of the Appellant. The Appellant further stated that there was no identification parade to really ascertain whether or not he was

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one of the robbers. The question that comes to mind now is: should the defence of alibi be investigated even if there are overwhelming evidences connecting the Appellant to the commission of the crime at the time of arrest?

I believe that in this case, there was enough evidence linking the Appellant to the commission of the offence which has demolished the defence of alibi. It is trite that a plea of alibi must satisfy certain requirements for it to qualify for police investigation. The requirements are:
(a) The specific place/places where the accused was. (b) The people in whose company he was.
(c) What, if any, transpired at the said time and place.
See EBRE VS. STATE (2001) 12 NWLR (PT. 728) 617 AT 636 PARA C – G.

Where a plea of alibi is raised and the prosecution is able to adduce sufficient and accepted evidence to fix the accused at the scene of crime at the material time, the alibi is thereby logically and physically demolished and it would be unreasonable and in fact, unimaginable for the police to begin to investigate same. There is nothing esoteric or special about a plea of alibi in the face of overwhelming evidence. See

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the cases of EKANEM VS. STATE (2012) LPELR – 19711 (CA) PAGES 17 – 18 PARA C – D and NJOVENS & ORS VS. STATE (1973) NWLR 76.

I am of the very firm opinion that the defence of alibi set up by the Appellant does not aid him as the evidence of PW2 and PW3 in particular, has sufficiently demolished the defence of alibi. PW2 was the taxi driver who was arrested alongside with the Appellant. His testimony on pages 70 – 72 of the Record of Appeal explicitly and deeply narrated the event and he even confidently stated that the Appellant had confessed that he was an armed robber, he went to rob at Omu-Aran and he was guilty. However, when given a chance to demolish the evidence under cross-examination, the Appellant and his counsel left the evidence untouched. In fact, they made no attempt to cross-examine the witnesses on material points.

In the case of OHUNYON VS. THE STATE (1996) 2 SCNJ 280 @ 288, it was held that an accused person has the burden of bringing the evidence on which he relies for his defence.

Also settled is that where there is unchallenged and uncontroverted evidence, a Court has a duty to act on it where credible. See the

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case of OFORLETE VS. THE STATE (2000) 7 SCNJ 162 @ 179, 183 – 184.

The Appellant was even unable to explain how he was taken from the police detention to the house of PW3 – PW5 where the armed robbery took place. Thus the lower Courts were right for convicting the Appellant in the absence of the defence of alibi being investigated.

Is it compulsory to conduct an identification parade in all instances?

In the case of AYENI VS. STATE (2021) LPELR – 54736 (CA) (PP. 17 – 18 PARAS. F), it was held per Ojo, JCA that:
“The law is settled that where a witness gives evidence of visual identification of an accused person which was not shaken under cross-examination, nothing stops the trial Court from accepting his evidence. See ILODIGWE VS. STATE (2012) 18 NWLR (PT. 1331) 1; AKINRINLOLA VS. STATE (2016) 16 NWLR (PT. 1537) 73; UDO VS. STATE (2018) 8 NWLR (PT. 1622) 462 and OLAKUNLE VS. STATE (2018) 6 NWLR (PT. 1614) 91. ”

Recognition of an accused person arises when a person sees or acknowledges the identity of a man or woman well- known to him before the crime was committed. Generally, such recognition dispels any shadow of doubt about his

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commission of the crime. See ATTAH VS. STATE (2010) LPELR – 597 (SC) AT 41 (D – G); RASHEED VS. STATE (2014) LPELR – 22456 (CA) AT 26 (C – D) and IDEMUDIA VS. STATE (2015) LPELR – 24835 (SC) AT 30 (C – D). In the case of OCHIBA VS. THE STATE (2011) LPELR – 8245 (SC) AT 36 (B – C), this Court held that recognition, visual spontaneous evidence of identification is more reliable than an identification parade. However, the Court has a duty to scrutinize the evidence of recognition of an accused to ensure that it is credible, cogent and free from reasonable doubt.

PW3 during her testimony on page 72 of the Record of Appeal had stated that she recognized the Appellant as she had been seeing him around prior to the day the armed robbery took place. This testimony was left uncontroverted during cross-examination and thus, credible and accepted by this Court.

PW4, although not present at the time of the robbery, testified at page 73 of the Record of Appeal that when the Appellant was brought by the Police, she recognized him with the words:
“he had worked for me at Landmark to mould blocks when I was given a contract. He was the first person to say

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“mummy don’t you know me again. “I said is this how you want to repay me.”

As usual, the learned counsel for the Appellant did nothing to controvert this evidence by cross examining the witness on the material points raised. In the case of OLAGUNJU VS. STATE (2014) LPELR – 22097 (CA) (PP. 28 – 29 PARAS D), the Court held:
There are three ways to establish the identity of the offender in a criminal trial.
(a) Visual identification of the offender by the victim or a witness to the offence.
(b) Circumstantial evidence which proves the identity of the offender.
(c) By the opinion of an expert who was real or documentary evidence to prove the identity of the offender. Under (a) i.e. visual identification, we have:
(i) Dock identification
(ii) Spontaneous identification
(iii) Identification in police custody; and
(iv) Use of photographs.
The spontaneous identification of the offender by the victim or a witness to the offence (as in this instant case) is a satisfactory and acceptable mode of visual identification and in such cases, it is not necessary to conduct an identification parade. It is pertinent to note

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that for the spontaneous recognition of the offender by a victim or a witness to be acceptable, it must be established that there was adequate opportunity under satisfactory conditions to observe the physical features of the person such that subsequent spontaneous recognition was possible.”

In the case of DAIRO VS. STATE (2017) LPELR – 43724 (SC) (PP. 38 PARA C), it was held per Sanusi, JSC that:
“I must stress here that evidence of identification is simply evidence to show that the person who committed the offence was the person charged and being tried. When faced with evidence of identification, all that a trial Court is to do, is to make sure and be satisfied that the evidence of identification had sufficiently established the guilt of the accused beyond reasonable doubt. Therefore, identification parade is not sine qua non to conviction. See UKPABI V. STATE (2004) 6-7 SC 27; ORIMOLOYE V. THE STATE (1984) 10 SC (REPRINT) 126; OSUAGWU v. STATE 1 – 2 SC (PT. 1) 37.”

In the case of FAMUYIWA VS. STATE (2017) LPELR – 43836 (SC) (PP. 31 PARAS. F – F), it was held per Sanusi JSC:
“The purpose of identification evidence is simply to ascertain

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that the offender/suspect is actually the one responsible in committing the crime.”

It was held in the case of STATE VS. ISIAKA (2013) LPELR – 20521 (SC) (PP. 23 PARAS. E), it was held per Alagoa, JSC:
“Where circumstances show the accused person’s involvement in the commission of the offence charged as in the case under consideration, that constitutes satisfactory proof and evidence of identification. See IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 478 – 479.”

I am more than satisfied that there was no need for the police to set up an identification parade for the sole purpose of identifying the Appellant. If I was one of the police officers involved in the investigation of this case, I would not give organizing an identification parade a thought.

It is funny to see that the Appellant’s counsel has insisted that the Appellant denied involvement in the armed robbery despite the overwhelming testimonies and evidence against him. The Appellant made no effort to explain how he was found to be in possession of guns at the point of his arrest.

In light of the foregoing, I hold that the instant appeal lacks merit and same is

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therefore hereby dismissed. The judgment of the lower Court is hereby affirmed. The conviction the Appellant remains.