Elvis Agbofodoh v. The State

This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on 8/6/2016 affirming the conviction and sentence of the Appellant by the trial Court for the offence of conspiracy to commit armed robbery and armed robbery.

The Appellant was arraigned on 3/4/2012 before the trial Court on a three-count charge as follows:
“STATEMENT OF OFFENCE
COUNT 1
Conspiracy to commit Armed Robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R.II Volume 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ELVIS AGOFODOH AKA FETE (M) and FRANK OKEDAMA AKA DOGBEJI (M) on or about the 8th day of July, 2010 at Udumovwori Street, Ekpan within the Effurun Judicial Division conspired with two others (now at large) to commit Armed Robbery.
STATEMENT OF OFFENCE
COUNT II
Armed Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R.II Volume 14, Laws of the Federation of Nigeria, 2004.

1
PARTICULARS OF OFFENCE
ELVIS AGBOFODOH AKA FETE (M) and FRANK OKEDAMA AKA DOGBEJI (M) on or about the 8th day of July, 2010 at Udumovwori Street, Ekpan within the Effurun Judicial Division robbed one Omasneye Mercy (F) of the sum of N50,000.00, Recharge Cards valued at N7000.00, LG and Durado Moblie Phones both valued at N40,000.00 while armed with a gun.
STATEMENT OF OFFENCE
COUNT III
Armed Robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R.II Volume 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ELVIS AGBOFODOH AKA FETE (M) and TRANK OKEDAMA AKA DOGBEJI (M) on or about the 8th day of July, 2010 at Udumovwori Street, Ekpan within the Effurun Judicial Division robbed one Ugbetere Kome (F) of the sum of N22,000.00, a Nokia Handset and a Torchlight while armed with a gun ”

The Appellant pleaded not guilty to the three count charge and the case went to trial.

At trial, the Respondent called two witnesses, PW1 (Omasheye Mercy) and PW2 (the Investigating Police Officer), and tendered two Exhibits, (a) Exhibit Pl -statement of the Appellant dated

2
8/8/2010, and (b) Exhibit P2 -Statement of the 2nd accused person dated 8/8/2010. At the close of the Respondent’s case, the Appellant made a no case submission. The trial Court partly upheld the no case submission and struck out count three of the charge. The Court further held that a prima facie case had been made out against the Appellant in respect of counts one and two to require his defence. The Appellant opened his defence and denied the two counts. He confirmed his Statement, Exhibit Pl, that he did not rob PW1.

At the close of trial, the learned trial judge held that the accused Appellant was guilty of counts I and II of the charge and sentenced him to death by hanging.

The Appellant was dissatisfied and appealed to the Court of Appeal which dismissed the appeal.

Still aggrieved, the Appellant further appealed to this Court vide Amended Notice of Appeal dated and filed 17th January, 2018 and deemed as properly filed and served on 1st July, 2021. The Record of Appeal was compiled and transmitted, and parties filed and exchanged their respective briefs.

The Appellant’s Brief was filed on 17th January, 2018 settled by

3
Victor E. Akpoguma while the Respondent’s Amended Brief was filed on the 6th of November, 2023 settled by Omamuzo Erebe, Esq and deemed properly filed and served on 7th March, 2024.

The Appellant posited one issue for the determination of this Appeal, to wit:
“Whether having regards to the evidence on record, the Learned justices of the Court of Appeal were right in affirming the conviction of and sentence of the Appellant on the sole ground that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt? ”

In his Amended Brief of Argument, the Respondent also raised one issue for the determination of this appeal, viz:
“Whether the Justices of the Court of Appeal were right in law when they affirmed the judgment of the Trial Judge when he held that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt?”

The issues distilled by both parties are similar, and in determining this appeal I will reword the issue as follows:
ISSUE FOR DETERMINATION<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

</br<>
4
Whether the Court of Appeal was right when it upheld the decision of the learned trial Judge that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submitted that the lower Court erred when it upheld the judgment of the trial Court that convicted and sentenced the Appellant on the grounds that the offence of conspiracy to commit armed robbery and armed robbery were proved beyond reasonable doubt.

He submitted that whenever the commission of a crime is directly in issue, all and not some of the ingredients must be proved by the prosecution beyond reasonable doubt; a burden that was unshifting. He relied on BELLO V. STATE [2012] 8 NWLR (Pt. 1302) p. 207 at 231 paras. D-G. The Appellant noted that the evidence led by the prosecution in an attempt to prove the charge of conspiracy was also what it relied on to prove the substantive offence. He cited AWOSIKA V. STATE [2011] ALL FWLR (Pt. 560) P.1237 at 1244 -1245 (ratio 15). He submitted that the ingredients the prosecution needed to prove to establish

5
conspiracy to commit armed robbery and armed robbery are: – (a) That there was an agreement or confederacy between the convict and others to commit the offence of robbery; (b) That in furtherance of the agreement or confederacy the Appellant took part in the commission of the offence of robbery or series of robberies; (c) That the robbery or each of robbery was an armed robbery. He relied on USUFU V. STATE [2008] ALL FWLR (Pt. 405) 1731. He submitted that the Respondent failed to prove beyond reasonable doubt that there was an armed robbery on 8th July, 2010. He cited GOPIOR V. STATE [2013] ALL FWLR (Pt. 709) p. 1061 at 1075 TO 1076 and BOTU V. STATE [2014] ALL FWLR (Pt. 741) p.1460 at 1473. He further submitted on the authority of BOTU V. STATE (supra) that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt and the burden does not shift and that any reasonable doubt must be resolved in favour of the accused. Appellant reproduced the testimony of PW1 [page 77-80 of the Records]. Appellant submitted that there was a contradiction about where PW1 was allegedly robbed, and the prosecution led no evidence to clear that

6
contradiction, and as such, the doubt should be resolved in favour of the Appellant.

It was also the submission of the Appellant that the evidence of the PW1 as quoted was highly incredible, doubtful and unreliable. The Appellant felt it was unbelievable that an armed robbery incident will happen in broad daylight and the perpetrators will not be masked; that the PW1 would in her evidence confront the armed robbers whom she knew very well, threaten to deal with them and they left her unharmed; or that the armed robbers would rob only PW1 and walk away without robbing any other persons. Appellant cited OLAYINKA V. STATE [2007] ALL FWLR (Pt.373) p. 163 at 178 paras., B-C.

The Appellant submitted further that the attitude of the Police in the case left much to be desired. He submitted that the case was not properly investigated. He cited STATE V. MATHIAS EKPO [1975] 5 UIL (Pt.111) 350 at 352 where the Court held that –
“An IPO must give an accused person’s side of the story as much attention as they give to the prosecution’s side”. He argued that there was no evidence, independent of the testimony of PW1 on the robbery attack, to

7
confirm its veracity. He argued that the defence of the Appellant that the case was trumped up from the community crisis was credible given the testimony of PW2 and the IPO (P2).

The Appellant also submitted that the identification evidence of PW1 was unreliable; that since PW1 claimed to know the Appellant prior to the armed robbery attack, the Court, to attach credibility to the evidence of PW1, ought to take into consideration whether PW1 reported the incident immediately after the attack, where she mentioned the name of the Appellant at the earliest opportunity. He relied on BOZIN V. THE STATE (supra) and WAKALA V. THE STATE [1981] 8 NWLR (Pt.211) 522. He posited that where evidence of identity is based on recognition, the Court ought to warn itself and carefully examine the evidence to see if there were any weaknesses that were capable of rendering the recognition evidence worthless. He cited NDIDI V. THE STATE (2007) 13 NWLR (Pt. 1052) 653. According to him there is no evidence that PW1 gave any such description and mentioned the name of the Appellant at the earliest opportunity. He posited that no independent evidence corroborated the

8
identification evidence of PW1 and that the lower Court accepted the evidence without cautioning itself.

It was further submitted that the lower Court failed to evaluate and consider the defence raised by the Appellant. He urged this Court to properly evaluate and consider the totality of the evidence on record. The Appellant finally argued that the offence of conspiracy was not proved and the lower Court was wrong to convict, especially since the conviction was arrived at, based on the same evidence that was argued to be wrongful in grounding the conviction of the Appellant for the substantive offence. He urged this Court to apply the same reason to discharge the Appellant for the offence of conspiracy to commit armed robbery.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submitted that the lower Court was right when it affirmed the trial Court’s judgment that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt. He submitted that the standard of proof required in a criminal prosecution is that of proof beyond reasonable doubt. He cited

9
Section 135(1) of the EVIDENCE ACT, 2011 which provides:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt”.

He posited, however, that “proof beyond reasonable doubt does not mean the prosecution must prove its case with mathematical exactitude, nor does it mean proof beyond any shadow of doubt. The prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with”. He relied on DIBIE V. THE STATE (2004) 14 NWLR (Pt.893) p.257@ Pages 284-285, paras H-A., OGUONZEE V. STATE (1998) 4SC 118-119; ITU V. STATE (2016) LPELR 26063 (SC).

Counsel posited that when a person is charged with the offence of armed robbery, the burden of proof is on the prosecution to prove the under listed elements of the offence beyond reasonable doubt, id est:
(a) That there was a robbery or series of robberies
(b) That the said robbery was an armed robbery
(c) That the Appellant was one of those who took part in the armed robbery.

He relied

10
on ATTAH V. THE STATE (2010)10 NWL (Pt. 1201) Pg. 190 @ Pg. 224, Paras B-F; ILODIBE UCHE V. STATE (2015) LPELR-24693 (SC); IDEMUDIA V. STATE (2015) LPELR-24835 (SC). The Respondent’s counsel reproduced the evidence of PW1 to submit that the ingredients of the offence of armed robbery was proved. See PAGES 77 to 78 of the Records of Appeal.

He further submitted that robbery is committed where there is taking of any item, and at or before or immediately after the said taking, there is the threat of violence or actual violence to obtain or retain the thing stolen. These ingredients clearly existed in this instance. He cited Section 11(1) of the Robbery and Firearms (Special Provision) Act, Cap 398 Volume 22, which defines “Firearms’’ to include any canon, gun, rifle, carbine, machine gun, and submitted that a gun is a Firearm within the meaning of Section 11(1) of the law just cited.

In respect of the 3rd ingredient required to prove armed robbery, Counsel, in his words, called in aid the “terse, lucid and vivid evidence of PW1 in her examination in chief”. See Pages 78, 81 and 84 of the Record of Appeal. He concluded that the

11
foregoing clearly situated the Appellant at the scene of the crime. He submitted that there is no doubt that PW1, who lives in the same community as the Appellant and his accomplices, knew the Appellant very well, and identifying her attackers was not difficult. He concluded, that there was no contrary evidence on record that the robbery incident took place.

On the issue of conflict of evidence of PW1 regarding the location of the crime which the Appellant submitted was contradictory, Respondent Counsel posited that the submission of the Appellant was speculative and misconceived. He noted that the evidence of PW1 on this issue was unchallenged by the Appellant at the trial Court, and was also not raised at the lower Court. He submitted that it is trite that an appellate Court cannot disturb a finding of the trial Court based on unchallenged evidence. He relied on OFORLETE V. STATE [2000] 12 NWLR (Pt. 681) 415, and OKOSI V. STATE [1989] 2SCNJ 189; (1989) 1 NWLR (Pt. 100) 642 where BELGORE, JSC held thus:
‘’In all criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to

12
attack any evidence lawfully admitted at the trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion, and it is not that of an expert and an accused person wants to dispute it, the venue for doing so is when the witness is giving evidence in the witness box. The witness should be cross-examined to elucidate facts disputed for it is late at the close of the case to attempt to negate what was left unchallenged; it is even an exercise in futility to demolish it on appeal, for it is like building a castle in the air to find fault with such undisputed evidence in this Court.”

On whether the evidence of PW1’s uncle and his wife are necessary to prove the guilt of the Appellant, Counsel submitted that the law imposes a duty on the prosecution to call only such number of witnesses as are necessary to prove the offence charged beyond a reasonable doubt. He posited that failure to call the above witnesses was not fatal to the case. Counsel further submitted that when the prosecution fails to call a particular witness, the accused is at liberty to call the witness by taking appropriate steps in that direction (pg.

13
485) paras E-F. See SUNDAY V. STATE (2010) 8 NWLR (Pt. 1224) pg 246, para B.

On the issue of proper identification of the accused Appellant by PW1, Counsel submitted that there is undisputed evidence on record that the PW1, who is a victim and an eye witness to the armed robbery identified the Appellant at the earliest opportune time. He further noted that this was a case of recognition rather than identification and that PW1 successfully pinned the Appellant to the scene of the crime. Counsel posited that, having been pinned to the scene of crime, the onus of proof here is not on the prosecution but on him who alleges he was not at the scene of crime where the prosecution said he was. He argued that it is trite law that while the general onus of proof is on the prosecution to prove the guilt of the accused person beyond reasonable doubt, the evidential burden of proof is on the party who will lose if no evidence is adduced to prove a particular fact. See ESANGBEDO V. STATE [1989] (LPELR)-1163 SC @pg. 16 paras B-G. He urged this Court to discountenance the Appellant’s Counsel’s submission as same is speculative and misconceived.

Finally, on

14
the issue of conspiracy to commit armed robbery, the Respondent submitted that the offence is complete where two or more people agree to do an unlawful act or to do a lawful act by unlawful means. He posited that concluded agreements can be inferred from what each person does or does not do in furtherance of the offence of conspiracy and that the offence is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. He cited BALOGUN V. A.G. OGUN STATE [2016] 6 NWLR (Pt. 763) 512; BOUWOR V. STATE [2016] 4 NWLR (Pt. 1502) 295. Counsel further submitted, that the lower Court inferred conspiracy from the criminal act of armed robbery which it had earlier held the prosecution proved beyond reasonable doubt, relying on GABRIEL OGOGOVIE V. STATE [2016] LPELR (40501) 1 at 23. He urged this Court to dismiss this appeal as the Appellant failed to show in his brief that the decision of the lower Court was perverse when it agreed with the trial Court that the prosecution proved the offence beyond reasonable doubt, and also failed to show exceptional circumstances upon which this Court will set aside the judgment of

15
the lower Court.

RESOLUTION OF THE APPEAL
I have set out at the beginning the charges upon which the Appellant was convicted and sentenced at the trial Court. At the close of trial and upon the no case submission filed by the Appellant, he was discharged on Count III of the charges. Subsequently, he was convicted by the trial Court, and the conviction affirmed by the lower Court, hence this appeal.

In our adversarial criminal justice system, the onus is on the prosecution to prove the commission of crime beyond reasonable doubt. Section 135 of the Evidence Act, 2011 provides that the standard of proof in a criminal case is proof beyond reasonable doubt.
Proof beyond reasonable doubt is not necessarily proof beyond all shadow of doubt. Where evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In BAKARE V. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12-13, OPUTA, JSC stated-
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this

16
presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities, but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J (as he then was) observed in Miller v. Minister of Pensions (1947)2 All E.R. 373:-
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – ‘of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.” Proof beyond reasonable doubt is proof with the certainty required in criminal trial. In other words, proof of all the ingredients of the offence as provided under the law. This Court has been called upon to determine

17
whether the lower Court was right in holding that the offences of conspiracy and armed robbery against the Appellant were proved with certainty.

Conspiracy to commit armed robbery:
This Court in HARUNA V. THE STATE (1972) 8-9 SC 108 or (1972) LPELR (1356) 1 at 23E-24A, per Fatayi-Williams, JSC (as he then was) held thus: “Conspiracy as an offence is nowhere defined in the Criminal Code….It means under common law, an agreement of two or more persons to do an act which it is an offence to agree to do….In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code’’. However, the offence of conspiracy is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. This is so because persons who agree to do an illegal act or achieve a legitimate end by illegal means do not invite a witness or witnesses to attest to their agreement. See JOHN V. THE STATE (2016) LPELR (40103) 1 at 10; OBIAKOR V. STATE (2002) 36 WRN 1 at 10. The nature of the offence of conspiracy by its very nature consists in

18
the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inference drawn from surrounding circumstances. See SULE V. THE STATE (2009) 17 NWLR (Pt. 1169) 33 and ADEJOBI V. STATE (2011) LPELR (97) 1 at 36B-E. The general principle of law is that a charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. See LAWSON V. STATE (1975) 4SC 115 at 123, KANO V. A-G BENDEL STATE (1988) 2 NWLR (Pt.201) 232, AMACHREE V. NIGERIAN ARMY (2003) 3 NWLR (Pt. 807) 256 AT 281 D-E and NWOSU V. STATE (2004) 15 NWLR (Pt. 897) 466.
It is appropriate at this juncture to reproduce the pertinent portion of the trial Court’s decision on this issue. The trial Court held thus: “In the instant case, no distinct evidence of conspiracy was adduced by the prosecution. The Court is being called upon to deduce conspiracy from the acts of the accused persons as postulated by the prosecution. To this end, both the count of

19
conspiracy to commit armed robbery and counts of armed robbery contained in the information can be dealt with together in this judgment. ”

In order to infer the commission of the offence of conspiracy to commit armed robbery, therefore, the evidence establishing the substantive offence of armed robbery must be considered.

Armed Robbery:
Armed robbery has been defined simply as stealing plus violence used or threatened. See ARUNA V. THE STATE (1990) LPELR (568) 1 at 14, EKE v. THE STATE (2011) LPELR (1133) 1 at 15 and FRN V. USMAN (2012) LPELR (7818) 1 at 14. To establish the offence of armed vobbery therefore, it has to be shown –
(1) that there was a robbery,
(2) that the robbery was an armed robbery and
(3) that the accused person was one of the armed robbers.
See BOZIN V. THE STATE (1985) 2 NWLR (Pt.8) 465, IKPO V. THE STATE (2016) LPELR (40114) 1 at 17-18 and ADEWUNMI V. THE STATE (2016) LPELR (40106) tat 10.

On the first and second ingredients, PW1 gave direct eyewitness account/evidence showing that there was robbery, and the robbers were armed. In her evidence in chief, she said:
‘’My name is Mercy

20
Omasheye…. I know the accused persons in this case. One of the accused persons is called Elvis Agbofodoh popularly known as “Fete” and the second is Frank Okedame also popularly called “Dogbeji”. On 8/7/10 I was about to go back to school, and I decided to go and tell my father that I was about going back to school as I do not live with my father in the same house. I live with my fiance. I got married on 27/11/10. Reaching my father’s house, I found that my father was not around. On my way out I saw a group of boys led by Frank Okedame alias Dogbeji holding some dangerous weapons like gun and cutlass. 1 ran into my father’s elder brother’s house called Papa Ojuvwuh to join him and his wife in the house. They smached(sic) the door of my uncle’s house open and came in. The first person I saw was Fete (Elvis Agbofodoh) and the other persons I saw were new and John Mogidi with others who I can identify by their faces if I see them. Fete also called Elvis Agbofodoh asked me to release the bag I was hanging on my neck or else he will waste me. The bag is coloured pink and black, and it contained my school fees and house rent N50,000, recharge

21
cards which I sell and my two telephone handsets. The recharge cards in the bag are worth N30,000. One of the phones -Dorado uses two sims and the LG phone has Glo sim on it.
Frank Okedame also called Dogbeji who was outside said I should release the bag and that I am wasting their time. They started shooting into the air. In that fear I released the bag to them and I told them I would not let you people go free as far as I know you people…. ”

Having considered the foregoing testimony, the trial Judge found as follows: “In the instant case there is the direct evidence of the victim of the armed robbery. I had the opportunity to observe her demeanour in the witness box. She appears to me a witness of truth and more so it is in evidence that she does not belong to any of the factions of the Ekpan community involved in the crisis.”

The lower Court scrutinized the findings of the trial Court set out above and endorsed same. The lower Court per Ogakwu, JCA stated as follows:
“I have considered the testimony of the PW1 on the cold printed records, and I agree entirely with the lower Court that the testimony established the

22
first and second elements of the offence of armed robbery.” The lower Court held further, that “The appellate Court working only on the cold printed records cannot overturn a finding which is not perverse and which is arrived at by a Court of trial from the observation of the demeanor of a witness. See AYENI V. THE STATE (2016) LPELR (40105) 1 at 18-19.”

I totally agree with the finding of the Court below that the first and second elements of the offence of armed robbery were proved by the testimony of PW1, the victim of the armed robbery. Unless the concurrent findings of the Court of Appeal and the High Court on crucial issues are shown to be perverse in any respect, the Supreme Court will not interfere. See OKOH V. STATE (2014) 8 NWLR (Pt. 1410) 502 at 532 -533 paras H-A; SHURUMO V. STATE (2010) 19 NWLR (Pt 1226) 73; IGWE V. STATE (1982) 9 SC 174.

On the contention of the Appellant that other witnesses were not called to testify and that this made the testimony of PW1 suspect, I agree with the lower Court that there is no obligation on the prosecution to call a barrage of witnesses. What matters is not the number of witnesses called, but the

23
quality of the evidence adduced. In STATE V. OLATUNJI (2003) 14 NWLR (Pt. 839) 138 this Court held thus: “In criminal law, the prosecution is only bound to call witnesses sufficient in its view to prove the charges against an accused person beyond reasonable doubt, and not a person who is not a material witness, in proof of its case. No particular number of witnesses need be called to prove a charge unless the law says so, like in the case of corroboration in certain cases.” [SAIDU V. STATE (1982) 4 SC 41; UDOFIA V. STATE (1981) 11 – 12 SC 49; OKPULOR V. STATE (1990) 7 NWLR (PT. 164) 581 REFERRED TO.] (PP. 167-168, PARAS. F-A), This position is fortified because the offence the Appellant was charged with does not require corroboration. See AKINKUNMI V. STATE (2022) 9 NWLR (Pt. 1836) 553 where this Court held that an accused person can be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration. (P. 588, para. F).

The evidence is such that the two ingredients of the offence of armed robbery were undoubtedly established.

To the issue of whether the accused person was one of the armed robbers,

24
the trial Judge held that he was. In her words:
“On the third ingredient of whether the accused persons participated in the armed robbery as proffered in Count II in the information. There is no doubt whatsoever that PW1 who lives in the same community with the accused persons, knows the accused persons very well, so that identifying her attackers was not difficult. She knew some of the attackers by name and she mentioned them at the earliest opportunity as she went with the Ekpan police in the early hours of 9/7/2010 to arrest her attackers in their houses but did not find them”

Having considered the contentions of the Appellant on this point, vis a vis the evidence adduced, the lower Court noted:
“While it is correct that there can be mistakes with the recognition of known persons, that doesn’t seem to be so from the evidence of recognition in the instant case. The circumstances of the robbery in broad daylight with none of the robbers wearing a mask facilitated the recognition of any known person among the robbers. The PW1 not only mentioned the Appellant’s name and alias but also his address. Furthermore, she took the

25
Police to the Appellant’s house, where unfortunately they did not meet the Appellant at home, thus underscoring the fact that the Appellant was well known to her. It seems as clear as crystal that the Appellant equally knew the PW1 before the incident, thereby further making it unlikely that the PW1 could have been mistaken as to her recognition of the Appellant as one of the robbers. In the Appellant’s extra-judicial statement, Exhibit P1, the Appellant stated inter alia:
“I know Mercy Ornashoye who accused me and other for robbing her, who lives at ODUMUWORI Street, the junior sister makes calls and sell recharge Card… ”
Accordingly, I cannot see my way clear with the Appellant hankering after the decision of the lower Court to be set aside on the premise that the evidence of identification based on recognition is not credible. The circumstance, atmosphere and environment of the robbery were such that the evidence of recognition adduced had no weaknesses that was capable of endangering or rendering worthless the testimony of the PW1 that she sufficiently recognized the Appellant as one of the robbers…. The PW1 remained

26
unshaken in cross examination as to her recognition of the Appellant as one of the robbers.”

This Court in THE STATE V. OLASHEHU SALAWU (2011) LPELR (8252)1 at 49-50 Per Adekeye, JSC stated inter alia as follows:
“ 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 …identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. …identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused a parade is not necessary. Recognition of an accused may be more reliable than identification.”
This Court in ATTAH V. THE STATE (2010) 10 NWLR (Pt. 1201)190 held that:
“Recognition of an accused person arises when a person sees or acknowledges the identity of a man or woman well-known to him committing a crime. Such recognition dispels any shadow of doubt about his commission of the crime.’’

Need I say more? The

27
assessment of the lower Court is in consonance with the law and is therefore unimpeachable. I agree. The third ingredient of the offence of armed robbery is clearly established.

It is not necessary to delve into other contentions of the Appellant which I consider tangential to the main issues, e.g. that the trial Court did not consider the defences raised by the Appellant. It is the finding of the lower Court that the trial Court clearly evaluated the totality of the evidence adduced and made lucid findings of facts and arrived at a definite conclusion. I will leave it at that.

Having found that the offence of armed robbery was established against the Appellant, I shall now revert to Count 1 of the charges against the Appellant: conspiracy to commit armed robbery. In the final analysis, and in the words of the trial Court: “From the circumstances of this case it can be inferred or deduced that the accused persons who were acting in agreement and with common purpose with others now at large, conspired to commit armed robbery.”

For reasons already stated earlier in this judgment on the charge of conspiracy to commit armed robbery, the

28
concurrent findings of the two lower Courts are hereby affirmed.

I resolve the sole issue in favour of the Respondent against the Appellant. The appeal is unmeritorious and same is hereby dismissed.