Jeremiah Dogo v. Commissioner of Police

This appeal is against the judgment of the Court of Appeal Abuja Division, delivered on the 7th day of January, 2021, affirming the conviction and sentence to 10 years imprisonment of the Appellant by the High Court of Federal Capital Territory Abuja, delivered on the 3rd day of October, 2018 for armed robbery punishable under Sections 6(b) and 1(2)(a)(b) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Laws of the Federation of Nigeria 2004.

Just by way of summary of facts giving rise to this appeal, the Appellant was arraigned before the High Court of Justice of the Federal Capital Territory Abuja on two Counts charge of conspiracy to commit armed robbery and armed robbery. Appellant was specifically alleged to have robbed one Williams Ishaya of his HP and Toshiba laptops, three cell phones, two pairs of shoes, one tee shirt and Etisalat modem, while armed with offensive weapons cutlass and stick. At the trial before the Court, the Prosecution called 5 witnesses who testified and tendered exhibits marked as exhibits A to Cl, the confessional

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statement of the appellant was also tendered and admitted as exhibit at the trial.

At the trial, when the prosecution sought to tender the confessional statement of the Appellant, there was vehement objection by the learned Counsel for the Appellant. The trial Court ordered Counsel to file written addresses on the objection to the admissibility of the confessional statement. The trial Court then delivered ruling dismissing the objection, the confessional statement was then admitted by the Court.

At the close of the case of the prosecution, the Appellant testified on his own behalf. In a judgment delivered at the end of the trial, Appellant was found guilty, the Court therefore convicted and sentenced him to 10 years imprisonment on each count of the two Counts of charge.

Appellant was miffed by the decision of the trial Court and therefore appealed to the lower Court. Appellant’s appeal was heard and dismissed in part, the Court affirmed the sentence and conviction of the appellant for the offence of armed robbery and acquitted him of the offence of conspiracy to commit armed robbery. Appellant became nettled by the decision of the lower Court

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and further appealed to this Court.

Before this Court, learned Counsel Salako filed the Appellant’s brief of argument on the 16th March, 2021, learned Counsel Moneme filed the Respondent’s brief of argument on the 26th day of March 2021. Appellant’s appeal is premised on four grounds of appeal found at pages 348-354 of the records of appeal.

In the Appellant’s brief of argument, learned counsel Salako nominated and argued two issues for determination, the issues are reproduced as follows:
1. Whether there was any reliable evidence in proof of the identity of the appellant to support the decision of the Court of Appeal affirming the decision of the trial Court that the respondent proved the offence of armed robbery against the appellant beyond reasonable doubt.
2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court convicting and sentencing the appellant for the offence of armed robbery.

The learned Counsel for the Respondent adopted the issues nominated for discourse by the Appellant. For completeness, I will still reproduce the issues adopted by the respondent, they are as follows:
1. Whether there

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was any reliable evidence in proof of the identity of the appellant to support the decision of the Court of Appeal affirming the decision of the trial Court that the respondent proved the offence of armed robbery against the appellant beyond reasonable doubt.
2. Whether the Court of Appeal was right to have affirmed the decision of the trial Court convicting and sentencing the appellant for the offence of armed robbery.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
The learned counsel for the Appellant submitted, citing the decisions in ODUNEYE V. STATE (2001) 2 NWLR (Pt.697) 311 at 328, OKPULOR V. STATE (1990) 7 NWLR (Pt. 164) 581, TANKO V. STATE (2008) 16 NWLR (Pt. 1114) 597 at 632, HASSAN V. STATE (2001) 6 (Pt. 709) 286 and Section 135 of the Evidence Act, that in all criminal trials, the respondent has the burden of proving the offence preferred against the accused person beyond reasonable doubts, and if there is any doubt in the evidence of the prosecution, that doubt will be resolved in favour of the accused person.

Learned counsel for the Appellant further argued that the prosecution is required to produce credible and cogent,

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evidence that can render the presumption of innocence in favour of the accused hopeless and pin him down to the offence, learned Counsel for the Appellant relied on USUFU V STATE (2007) 1 NWLR (Pt. 1020) 94 at 112, ALABI V. STATE (1993) 7 NWLR (Pt. 307) 51 and SOLOLA V. STATE (2005) 11 NWLR (Pt- 937)460.

Learned counsel further submitted that where an accused is not apprehended at the scene of crime, the prosecution must adduce believable evidence linking him to the offence by way of positive and convincing identification. In the instant appeal Counsel said the identity of the accused as one of the persons who committed the offence charged forms the fulcrum of the case of the prosecution, and if there is doubt on the identity of the accused, the case of the prosecution must fail, relying on the case of SALAHUDEEN V. STATE (2013) LPELR 21851 (CA).

Learned counsel for the Appellant submitted that the lower Court was wrong in affirming the decision of the trial Court, relying heavily on the evidence of PW1. Learned Counsel submitted that the evidence of this witness is replete with serious material contradictions sufficient to move the lower Court to

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hold that his evidence was not credible enough to establish the evidence of identity of the Appellant as one of the persons who took part in the commission of the offence. Learned Counsel described the procedure adopted by the trial Court in establishing the identity of the Appellant as poor and completely alien to the settled position of the law.
Learned Counsel further submitted that by looking at the records properly, this Court would find that the entire evidence of PW1 was dotted with irreconcilable ambiguity, contradiction, and unreliability, making the evidence totally unacceptable.

Learned Counsel added that the circumstances in which PW1 allegedly fixed the appellant to the scene of the crime is spurious, incredible, and totally unreasonable. Learned Counsel said the robbery incident took place at night on the 5th day of July 2014, it was dark the witness also testified that it was dark and there was no light. Counsel added that the only Prosecution witness who allegedly saw the Appellant gave evidence and said that when the robbers came, he was lying face down.

Learned Counsel submitted that the law is settled that where the evidence

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adduced the identity of the accused person is in dispute, the Court must examine such evidence closely. Counsel added that the lower Court failed to reappraise the evidence and apply the correct principles of law that are applicable to the facts and circumstances of this case as can be clearly garnered from the resolution of the complaints that arose in the Appellant’s appeal against the judgment of the trial Court. Learned Counsel therefore urged this Court to resolve this issue in favour of the Appellant against the Respondent.

ISSUE TWO
Learned counsel for the Appellant argued that of all the elements of the offence of armed robbery, the respondent was only partially able to prove the fact that robbery took place, the other elements of the offence charged were not proved by sufficient and cogent evidence at the trial Court. The respondent was unable to prove that the alleged robbery was an armed robbery, and that the appellant took part in the robbery.

Learned counsel contended that from the records, this Court will find that the entire trial arose from a trumped-up charge designed to get rid of the appellant whose presence in the community

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some members of the landlord’s association had objections. Counsel submitted that had the Court below carefully re-evaluated the evidence adduced at the trial Court, the lower Court would have set aside the conviction and sentence.

Learned counsel submitted that PW1, the victim of the robbery attack who the Respondent presented as the most credible witness in his viva- voce evidence, testified that the incident happened at 03:46am on the 6th day of July, 2014. However, PW 4 who investigated the case at Karu Police Station said that the case was reported on 5th day of July at 22: 30 hrs and that the purported confessional statement was made on that same day between 10:00 pm and 10:40 pm. Learned counsel said that surprisingly, the Respondent never tried to offer any explanation on these manifest contradictions neither through tendering of further exhibits nor calling further witnesses or re-examination of its prevaricating witnesses to clear whatever ambiguity.

Learned counsel finally urged this Court to re-evaluate the evidence as contained in the records of appeal and come to an appropriate decision by setting aside the judgment of the lower Court.

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Learned Court urged this Court to resolve this issue in favour of the Appellant and allow the appeal.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
ISSUE ONE
Learned Counsel for the Respondent submitted that the record of appeal shows that PW1 mentioned the name of the Appellant at the earliest opportunity after the robbery, the Learned Counsel added that PW1 said the appellant was one of the armed robbers and he mentioned the name of the appellant as he immediately took his neighbours to the house of the appellant even before the police came.

Learned Counsel contended that the best identification evidence is that given by a victim of a crime. Counsel added that an identification parade will not be necessary where there is good and cogent evidence linking the defendant to the crime on the day of the incident and where the defendant’s confessional statement identifies him as the person who committed the crime relying on AKINRINOLA V. STATE (2017) All FWLR (Pt. 910) 338 at 371. Learned Counsel for the Respondent submitted that identification parade will not be necessary where there is reliable evidence linking the defendant with the offence or where his

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confession is sufficient to identify him. See FAMUYIWA V. STATE (2018) ALL FWLR (PT010) 1 SC.

Learned counsel further submitted relying on OKOSI V STATE (1989) 1 NWLR (Pt. 100) 642, IBRAHIM V. STATE (1991) 4 NWLR (Pt. 186) 399 and OKIEMUTE V. STATE (2016) All FWLR (Pt. 864) at 1844 that identification parade will not be necessary if the witness already knew the accused prior to the commission of the offence. That where the victim has immediately after the commission of the offence seen the accused or arrested or joined in any other way in identifying him, it will be superfluous to line up people for identification.

Learned Counsel submitted that the circumstances wherein PW1 recognized the appellant were rational and possible even though the robbery happened at night. Learned Counsel argued that from the records, PW1 was not in a state of fear as argued by the learned Counsel for the Appellant because from the evidence, PW1 was communicating with his wife during the robbery. Counsel added that PW1 equally rushed out immediately after the robbery to help track down the robbers which shows that he was not crippled by fear.

Learned Counsel submitted

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that PW1 recognized the appellant because even though he was lying face down, he also testified that he was raising his head intermittently during the operation. Counsel further submitted that PW1 said when one of the robbers flashed his torch light, it reflected on the appellant, and that gave him the opportunity to identify the Appellant.

Learned Counsel said in the instant case, identification was not necessary because by his confessional statement, the appellant identified himself as the offender, it is equally not necessary because circumstances of the case have sufficiently and irresistibly espoused the appellant to the crime and the scene of the crime. Learned Counsel urged this Court to resolve this issue in favour of the respondent against the Appellant.

ISSUE TWO
Submitting on this issue, learned Counsel said for the prosecution to sustain the charge against the defendant and secure conviction, it must prove its case beyond reasonable doubt, it is also the requirement of the law that the standard of proof must be beyond reasonable doubt. Counsel relied on the decision in THE STATE V. FEMI OLADOTUN (2011) LPELR-3226 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”>

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Learned counsel said before it can rightly said that the Prosecution has established its case beyond reasonable doubt, all the ingredients of the offence charged must have been established, if one ingredient is not proved, it cannot be said that the Prosecution has established its case against the defendant beyond reasonable doubt.

Learned Counsel outlined the elements that must be proved by the Prosecution to secure conviction, the elements are as set out below:
1. That there was a robbery or series of robberies
2. That each of the robberies was an armed robbery
3. That the accused person was one of those who took part in the robbery.

Counsel cited EKE V. THE STATE (2011) 3 NWLR (PT.1255) 589 in support of this contention.

On the first element, Counsel submitted that the Respondent has proved this element of the charge before the trial Court through the testimonies of PW 1 to PW4 and exhibits B, C, C1. On the second element, Counsel said the lower Court specifically found that the Respondent proved three methods of establishing the offence of armed robbery against the appellant from the eye witness testimony of PW1, the

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confessional statements of the Appellants and the circumstantial evidence adduced by PW2, PW3, PW4 and PW5. Counsel further contended that the fourth element that the Respondent proved that the Appellant is one of the armed robbers via identification evidence, circumstantial evidence and exhibits B, C and C1 the confessional statement of the appellant especially exhibit C and C1 which were tendered and admitted without any objection from the Appellant or his Counsel at the trial Court.

Learned counsel submitted that where a confessional statement is admitted without any objection from its maker, the law implies that the maker of the statement agrees with everything in the statement, it also means that the maker made the statement voluntarily. Counsel relied on SMART V. THE STATE (2016) LPELR-40728 (SC).

Learned counsel further submitted that the Court can rely on and utilize a confessional statement tendered and admitted without objection to ground conviction without corroboration even if the Appellant had retracted making such statement. Learned Counsel relied on EGHAREVBA V. THE STATE (2016) 8NWLR (Pt. 1515) 433, EFFIONG V. STATE (1998) 59 LRCN

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3961 at 3975, GBADAMOSI V. THE STATE (1992) 9 NWLR (Pt. 266) 465 at 480, IKEMSON V. THE STATE (1989) 3 NWLR (Pt. 110) 455 in support of this submission.

Learned counsel for the Respondent finally urged the Court to resolve this issue against the Appellant and dismiss the Appellant’s appeal.

RESOLUTION
Having gone through the briefs of argument of learned Counsel and the issues crafted for determination by the parties, I am of the view that the appeal can be determined on a single issue for determination, I will therefore adopt the Appellant’s first issue for determination as the issue to resolve in the determination of this appeal. For the purpose of setting the records straight, let me reproduce the Appellants first issue for determination adopted in the resolution of this appeal, the issue reads as follows:
“Whether there was any reliable evidence in proof of the identity of the appellant to support the decision of the Court of appeal affirming the decision of the trial Court that the respondent proved the offence of armed robbery against the appellant beyond reasonable doubt”.

The burden placed on the prosecution in every criminal

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trial is heavy; it must establish the guilt of the accused person beyond reasonable doubt. Throughout the trial process, it must remain clear that the prosecution retains the burden of proving its case against the accused beyond reasonable doubt see: Section 135 of the Evidence Act, 2022, and the case of NWATURUOCHA V. THE STATE (2011) 6 NWLR (Pt. 1242) 170 at 193 where this Court held that:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion, which is consistent with a high degree of probability………. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution. The charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond limit”.
Proof beyond reasonable doubt means proof to moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man and applying his reasons to the evidence before him that the crime charged has

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been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. See AFOLALU V. THE STATE (2010) 16 NWLR (Pt.1220) 584, DAIRO V. STATE (2017) 9-12 SC 119. IKPO V. STATE (2016) 10 NWLR (Pt. 1521) 501 and BAKARE V. STATE (1987) 1 NWLR (Pt. 52) 579.

The essential ingredients of the offence of armed robbery, which must be proved beyond reasonable doubt by the prosecution before securing conviction, are as set out below:
1. That there was a robbery or series of robberies.
2. That the robbery was an armed robbery.
3. That the accused was one of those who participated in the robbery or series of robberies.
See BOZIN V. STATE (1985) (pt.8) 465 and ALABI V. STATE (1993) 7 NWLR (pt. 37) 511.

In proving the case of the prosecution against the Appellant, PW1 in his evidence before the trial Court at page 109 of the records of appeal said as follows:
“on the 6th day of July, 2014, at about 3.46 a.m, I heard an unusual movement in my premises. When I checked, I saw people. I woke my wife and started calling neighbors with our phones.
One of the robbers issued threat to me. He said I should

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open the door. I discovered that the padlock had been broken, I therefore opened the door.
One of the robbers directed me to the bedroom.
They asked me to bring my phones and the money I had with me. Immediately I opened the door, was able to identify the defendant as one of the robbers. The defendant went and searched for my wife and ordered us to lie down. I know the defendant because he is a member of our community. They collected two laptops, three phones, and the computer bag and internet modem, a pair of shoes and a tee shirt.
As the robbery continued and my neighbours could not gain access, they begun to throw stones at the roof. They decided to signal themselves and left. When I realized that they had gone, I went to open the gate for them. As soon as I opened the gate, I informed them that I could identify the defendant. They came with a bright torchlight. When one of them flashed their torchlight, I was able to pick his face. I could also recognize him in the process of bringing my wife. My neighbours said since I had identified the defendant, we should go to the landlord. The landlord called the defendant on phone because he was not

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at home. When he came he was confronted with the robbery and he denied. The community advised we move to a neutral place, he was interrogated by Mr. Ovel, chairman of the community, Phillip Ayapan and Festus Wassa. They came out to tell me that defendant admitted being the person that robbed me.

The testimony of PW1 at the trial Court was clear and unambiguous. The learned trial Judge, who had the opportunity of listening to the testimony and observing the demeanour of the witness in the witness box, believed him, this is a privilege available to the trial Court alone. Apart from the testimony of PW1, there are other witnesses who testified before the trial Court and corroborated the testimony of PW1. PW2 who is a Chief Security Officer of the community testified that the Appellant confessed to the commission of the offence and apologized blaming his involvement in the robbery as the work of the devil. PW3, one, Joel Tjavun Orvaal, Chairman of the community gave evidence that the Appellant confessed to having committed the offence. The lower Court upon analysing the testimonies of the witnesses at the trial Court agreed with the conclusion reached by the

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trial Court and affirmed the decision of the trial Court.

The lower Court while affirming the judgment of the trial Court at page 341 of the records of appeal held as follows:
“having gone through the records and evidence before the trial Court, I find that the trial Court properly evaluated the evidence against the appellant for armed robbery………..”

Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw, It is almost impossible to dislodge such evidence.
PW1 was sleeping in his house when the Appellant in the company of his collaborators, attacked him and carted away his valuable items from the house. The Appellant was eventually arrested by the neighbours of PW1.

I need to mention that at the trial, the confessional statement of the Appellant was tendered and admitted in evidence after trial within trial was conducted, all these are materials that put together to strengthen the case of the prosecution against the Appellant.

In a recent decision of this Court in YAHAYA ALIYU v. THE STATE (2023) LPELR-60335(SC) this Court held as follows:
“It must be

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restated that the confessional statement of an accused person where same is found to be voluntary and unequivocal provides the best evidence of the person’s guilt. Resiling from the statement does not make it unreliable. The Court can still admit and convict on a retracted confession if satisfied that the statement was indeed made by the accused person and the circumstances under which the statement was made guarantee the credibility of the content of the confessional statement. This Court has, as part of the very principle, insisted that before the trial Court convicts purely on the basis of a retracted confessional statement, it ensures that some corroborative evidence outside the confession abides making the truth in the content of the retracted confession probable. See Per MUHAMMAD, JSC, in MOHAMMED V. STATE (2014) LPELR-22916(SC) (PP. 54- 55 PARAS. E).
Where as in the instant case an accused person denies, retracts, contends or resiles his confessional statement, the Court over the time has come up with some tests to verify, ascertain and confirm the truthfulness, voluntariness and authenticity of the said confessional statement of the accused person

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that is being denied. In this, the tests for a confessional statement to be accepted and good enough to be used to effect a conviction are: (i) Is there anything outside the confession to show that it is true, (ii) Is it corroborated in any way? (Hi) Are the relevant statements of fact made in it (most likely to be) true as far as they can be tested? (iv) Did he have the opportunity of committing the offence? (v) Is the confession possible? (vi) Is the alleged confession consistent with other facts, which have been ascertained and established? See Per PETER-ODILI, JSC, in AFOLABI V. STATE (2016) LPELR-40300(SC) (PP. 33 PARAS. A).”

I must state at this point that I am in total and complete agreement with the judgment of the lower Court that the prosecution in the instant case proved all the essential ingredients of the offence with which the appellant was charged beyond reasonable doubt. The materials generated at the trial put together constitute a sufficient pedestal upon which the trial Court could concrete its findings that the essential elements of the offence of armed robbery had been proved beyond reasonable doubt. The lower Court rightly in my view

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too affirmed those findings and conclusion and I have no reason to tinker with the unassailable findings of the lower Court.

I disagree with the learned counsel for the Appellant that the identity of the Appellant had not been established by the prosecution and there was utmost need to conduct identification parade. Identification parade becomes necessary only where the identity of the defendant is in doubt, or during the trial some doubt is created around the identity of the defendant. This Court in UDO v. STATE (2023) LPELR-59741 (S.C) (Pp. 15-18 paras. A) held as follows.
“While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognise the suspect or where his identity is in dispute.
… It will not be necessary in the following circumstances where: (a) there is a clear and uncontradicted eye witness account and identification of

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the person who allegedly committed the crime; (b) the victim knew the accused previously; (c) the defendant is linked to the offences by cogent and compelling evidence; and (d) the accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where: (a) the victim did not know the accused before and his first acquaintance with him was during the commission of the offence; (b) the victim or witness was confronted by the offender for a very short time; or (c) the victim due to time and circumstances might not have had the opportunity of observing the features of the accused. See Okiemute Vs The State (supra) [2015) 15 NWLR (Pt. 1535) 297 (2016) LPELR – 40639 (SC).”

In the instant case, PW1 recognised the Appellant and mentioned his name to his neighbours immediately after the robbery incident, and the Appellant was immediately accosted, and he offered a confessional statement.

On the issue of contradiction, in the evidence of PW1, PW2 PW3 and PW4, the settled position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is

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well-settled, it is not every minor contradiction in the evidence of witnesses that matters or has the effect of rendering the evidence unbelievable, incongruous, and preposterous. Before a trial Court disbelieves a witness for reasons of contradiction, it must be shown that the contradiction is on a material point. The contradiction must be substantial and sufficient to render the evidence doubtful – See KALU V. THE STATE (1988) 4 NWLR (Pt.90) 503 SC, and OCHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) 57, where this Court per Tobi, JSC, (of blessed memory) on the issue of contradiction in the evidence of witnesses eloquently elucidated as follows and I quote:
“Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not

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material or substantial, will go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different versions in respect of the peripheral surrounding the event”.

From the totality of the evidence generated at the trial, I am satisfied that the Appellant was properly connected to the crime with which he was charged. Appellant has not made a case deserving of interference by this Court; I am not convinced that there is any reason for this Court to tinker with the concurrent findings of the trial and the intermediate Courts. The sole issue for determination in this appeal is therefore resolved against the Appellant in favour of the Respondent.

Appellant’s appeal is devoid of a jot of merit and therefore deserves to be and is hereby dismissed. The Judgement of the lower Court delivered on the 7th day of January, 2021; in appeal number CA/ABJ/CR/401/2020 is hereby affirmed.

Appeal dismissed.