ORODE v. STATE

CITATION: (2018) LPELR-43788(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON FRIDAY, 2ND FEBRUARY, 2018Suit No: CA/S/35C/2017

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenSOLOMON D. ORODE - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. COURT - DUTY OF COURT: Duty of Court incriminal proceedings"When an accused is being tried for any casewhatsoever, it behoves the Court to subject everyitems of facts raised for or against him to mercilessscrutiny because of the principle of law ingrained inthe Constitution that the accused is presumedinnocent. Therefore, nothing should be taken forgranted as the liberty of the accused is atstake."Per SHUAIBU, J.C.A. (P. 30, Paras. A-B) - readin context

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2. CRIMINAL LAW AND PROCEDURE - OFFENCEOF ARMED ROBBERY: Ingredients required to beproved by the prosecution to establish the offenceof armed robbery; ways of proving the offence ofarmed robbery"The essential ingredients of armed robbery are: (a)That there was a robbery or series of robberies; (b)that the robbery or each of the robberies was anarmed robbery; and (c) that each of the accusedpersons was part of or had taken part in the armedrobbery or robberies. See IKEMSON V. STATE (1989)3 NWLR (Pt.110) 455, ALABI V. STATE (1993) 7NWLR (Pt. 307) 511 BELLO V. STATE (2007) 10NWLR (Pt. 1043) 564, ADEKOYA V. STATE (2017) 7NWLR (Pt. 1565) 343 and F.R.N V. BARMINAS (2017)15 NWLR (Pt. 1588) 177. The appellant in thisappeal questions the rational of the trial Court inrelying on the same set of evidence, that is,Exhibits L. O. & P in discharging the appellant's co-accused and at the same time convicting theappellant. And that it was on the same evidencethat the appellant was discharged and acquitted forthe offence of conspiracy at the trial Court. I havestated the essential elements or ingredients ofarmed robbery and as in other criminal cases, therecognized methods in proving the said ingredientsof armed robbery are basically the same. They are:- (a) The confessional statement of the accusedperson, (b) Circumstantial evidence, or (c) Evidenceof an eye witness." It is to be noted that any of theabove three methods would suffice."Per SHUAIBU,J.C.A. (Pp. 17-18, Paras. C-D) - read in context

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3. CRIMINAL LAW AND PROCEDURE - OFFENCEOF CULPABLE HOMICIDE PUNISHABLE WITHDEATH: Ingredients that must be proved toestablish the offence of culpable homicidepunishable with death"The essential ingredients for the offence ofculpable homicide punishable with death on theother hand are: (a) that the deceased had died, and(b) that the death of the deceased was caused by orresulted from the act of the accused person, and (c)that the act of the accused person was intentionalor with the knowledge that death or bodily harmwas a probable and not a likely consequence. SeeOBIAKOR V. STATE (2002) 10 NWLR (Pt. 776) 612,SULE V. STATE (2009) 17 NWLR (Pt. 1169) 33 andSHAIBU V. STATE (2017) 16 NWLR (Pt. 1592)396."Per SHUAIBU, J.C.A. (Pp. 18-19, Paras. D-A) -read in context

4. CRIMINAL LAW AND PROCEDURE - OFFENCEOF CONSPIRACY: Whether the offence ofconspiracy is separate and distinct from the actualcommission of the offence"I need to point out here that conspiracy to commitan offence is a separate and distinct offence and isindependent of the actual commission of theoffence to which the conspiracy relates. Therefore,the offence of conspiracy may be fully committedeven though the substantive offence may beabandoned or aborted or may have becomeimpossible to commit. See BALOGUN V. A.G, OGUNSTATE (2002) 6 NWLR (Pt. 765) 512, and ADAMU V.STATE (2017) 7 NWLR (Pt. 1565) 459."Per SHUAIBU,J.C.A. (P. 22, Paras. C-E) - read in context

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5. CRIMINAL LAW AND PROCEDURE - OFFENCEOF CONSPIRACY: Whether the offence ofconspiracy is separate and distinct from the actualcommission of the offence"The law has long been settled that conspiracy is aseparate and distinct offence which may beproceeded upon even in the absence of thesubstantive offence for which the conspiracyrelates." Per SHUAIBU, J.C.A. (P. 23, Paras. D-E) -read in context

6. CRIMINAL LAW AND PROCEDURE - DISCHARGEOF ACCUSED PERSON(S): Whether the dischargeand acquittal of an accused person will lead to thedischarge and acquittal of other co-accused personscharged with the same offence"It is not in every case where the accused is triedjointly with another that the discharge of one mustlead to the discharge of another particularly wherethe evidence against one accused is different fromthat against the other. The case in IDIOK V. STATE(2008) 13 NWLR (Pt. 1104) 225 is on all fours withthe situation in the instant case in that the case ofthe appellant was not interwoven and inseparablefrom that against the 2nd accused. The 2ndaccused did not confess to either the offence ofconspiracy or that of the substantive offences ofarmed robbery not to talk of the culpable homicidepunishable with death in which only the appellantwas tried and convicted."Per SHUAIBU, J.C.A. (P. 24,Paras. A-D) - read in context

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7. C R I M I N A L L A W A N D P R O C E D U R E -DEFENCE/PLEA OF ALIBI: The implication of anaccused person raising the defence of alibi at trial"In NDIDI V. STATE (2007) 13 NWLR (Pt. 1052) 633at 665 - 666 it was held that raising the defence ofalibi at the trial is of little or no help to an accusedperson. Alibi as a defence should be raised at theearliest opportunity and that opportunity is in theinterrogation room to enable the police toinvestigate the alibi. The police cannot investigatean alibi raised at the trial or during the trial."PerSHUAIBU, J.C.A. (P. 31, Paras. C-D) - read in context

8. C R I M I N A L L A W A N D P R O C E D U R E -DEFENCE/PLEA OF ALIBI: Whether defence ofalibi must fail once an accused is fixed to the sceneof crime"I therefore agree completely with the submissionof the learned counsel for the respondent that thedefence of alibi by the appellant cannot avail himon the face of his confessional statements that fixedhim at the scene and also the fact that he did notraise the said defence timeously. Where as in thiscase, the prosecution adduces sufficient andacceptable evidence to fix a person at the materialtime, his alibi is logically demolished and his alibibecame in effective. See STATE V. EKANEM (2017) 4NWLR (Pt. 1554) 84 at 107."Per SHUAIBU, J.C.A. (Pp.31-32, Paras. E-A) - read in context

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9. CRIMINAL LAW AND PROCEDURE - OFFENCEOF ARMED ROBBERY: When a person will bedeemed to have committed armed robbery"Although on the evidence before the trial Court,the appellant was not shown to have fired the gunthat killed the deceased, he was directly involved inthe robbery operation in which the deceased wasshot dead. The appellant and his cohort were jointlyconcerned in both the armed robbery and in themurder of the deceased. See ENWEONYE v. QUEEN(1955) 15 WACA 1 and NWACHUKWU V. STATE(2002) 12 NWLR (Pt. 782) 543."Per SHUAIBU, J.C.A.(P. 33, Paras. D-F) - read in context

10. EVIDENCE - CONFESSIONAL STATEMENT:Whether a court can convict solely on theconfessional statement of an accused person"It was held in plethora of judicial decisions thatwhere a confessional statement is direct, positiveand unequivocal as to the admission of guilt by anaccused person, the statement is enough to groundthe conviction of the accused so long as the Court issatisfied with the truth of such a confession. SeeNWAEBONYI V. STATE (1994) 5 NWLR (Pt. 343) 138,ODEH V. F.R.N (2008) 13 NWLR (Pt. 1103) 1 andIKPO V. STATE (2016) 10 NWLR (Pt.1521) 501."Per SHUAIBU, J.C.A. (P. 29, Paras. C-E) - read incontext

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11. EVIDENCE - PROOF BEYOND REASONABLEDOUBT: Meaning of proof beyond reasonable doubt"It is settled that the prosecution always bears theburden of proof and the standard of proof of acriminal offence is proof beyond reasonable doubtto secure conviction. However, proof beyondreasonable doubt is not proof to the hilt. It is notproof beyond all iota of doubt. Where all theessential ingredients of the offence charged havebeen proved or established by the prosecution, thecharge is proved beyond reasonable doubt.Consequently, proof beyond reasonable should notbe stretched beyond reasonable limit. SeeADEKOYA V. STATE (2017) 7 NWLR (Pt. 1565)343."Per SHUAIBU, J.C.A. (P. 16, Paras. C-F) - read incontext

12. EVIDENCE - CONFESSIONAL STATEMENT:Meaning of confession; effect of a properly admittedconfession"By virtue of Section 28 of the Evidence Act, 2011 aconfession is an admission made at any time by theperson charged with a crime, stating or suggestingthe inference that he committed that crime. If madevoluntarily, a confession is deemed to be a relevantfact against the maker. See SAIDU V. STATE (1982)4 SC 41. In NWACHUKWU V. STATE (2007) 17 NWLR(Pt. 1062) 31 at 70 the Supreme Court held thatonce a confessional statement is admitted inevidence it becomes part of the case of theprosecution and the trial Court is bound to considerits probative value."Per SHUAIBU, J.C.A. (P. 27,Paras. A-D) - read in context

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13. EVIDENCE - BURDEN OF PROOF/ONUS OFPROOF: Onus of proof on the prosecution andaccused person when a defence of alibi is raised"Alibi is a question of fact that must be establishedor discredited by credible evidence. Once theprosecution has discharged the onus placed on it byadducing evidence against the defence put forwardby the accused, then the onus shifts on the accusedto call evidence to weaken or discredit the evidenceof the prosecution. As a general rule, where adefence of alibi has been promptly and properly putup, the burden is on the prosecution to investigateit and rebut such evidence in order to prove thecase against the accused person beyond reasonabledoubt. However, an accused person has to firstdischarge the evidential burden of setting upenough facts on which an alibi can rest before theonus will shift on the prosecution to disprove thealibi. See AGU V. STATE (1985) 9 SC 221 and AYANV. STATE (2013) 15 NWLR (Pt. 1376) 34."PerSHUAIBU, J.C.A. (Pp. 30-31, Paras. E-B) - read incontext

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14. EVIDENCE - MEDICAL EVIDENCE: Circumstancewhere medical evidence would not be needed"The appellant however denied using the gun in theoperation that day. Where there is other evidenceupon which the cause of death can be inferred as inthis case, it is not vital to have resort to medicalreport. These facts were quite sufficient upon whichthe trial Court rightly found that the cause of thedeceased death was the gun shot by the said gangof armed robbers. And that whoever shot a manwith a gun deliberately must have intended tocause the death of such a person. In other words,where the cause of death is obvious, medicalevidence ceases to be of any practical or legalnecessity especially where death is instantaneousor nearly so. See BEN V. STATE (2006) 16 NWLR (Pt.1006) 582. Also in the case of SHAIBU V. STATE(Supra) the Supreme Court re-affirmed the legalposition that where a person dies shortly after anattack by an accused, it is presumed that it is theaccused that killed him. Thus, medical evidence isnot essential in establishing the cause of deathwhere the deceased was attacked with a lethalweapon and died instantly."Per SHUAIBU, J.C.A. (Pp.32-33, Paras. E-C) - read in context(2

018)

LPELR

-4378

8(CA)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the

Leading Judgment): The appellant and his co-conspirator

were charged before the High Court of Sokoto holding at

Sokoto on Charge No. SS/11C/2009 on multiple counts of

conspiracy, armed robbery, aiding and abetting the offence

of armed robbery, and culpable homicide punishable with

death contrary to Section 6 (b) 1 (2) (a), 6 (a) of the

Robbery and Firearms Act and Section 221 of the Penal

Code. The Charges read as follows:

CHARGE

1. That you Solomon D. Orod and Godwin O. Bini on or

about the 24th day February, 2008 at about. 2100 hours at

Sokoto Conspired among yourselves-with others now at

large to wit Prince Efemena, Osaz and Ehigie within Sokoto

Judicial Division agreed to do an illegal act to wit, rob Gold

Merchants at old Market area, Sokoto and that same act

was done in Pursuance of the agreement and you thereby

Committed an Offence Punishable Under Section 6 (b) of

the Robbery and Firearms (Special Provision) Act Cap R11

LFN, 2014.

2. That you Solomon D. Orode and Godwin O. Bini on or

about the 24th day February, 2008 at about 2100 hours at

Sokoto Conspired among your

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selves with others now at large to wit Prince Efemena, Osaz

and Ehigie within Sokoto Judicial Division armed your

selves with Firearms and robbed Gold and Jewelries

Merchants and their Customs of various Gold Items and

Money worth over N25,000,000=00 (Twenty Five Million

Naira) and thereby committed an offence Punishable Under

Section 1 (2) (a) of the Robbery and Firearms (Special

Provision) Act Cap R11 LFN 2004.

3. That you Solomon D. Orode on or about the 25th day

February, 2008 at about 1430 hours at old Market area,

Sokoto while in Company of Prince Efemena, Osaz and

Ehigie (who are now at large) with Sokoto Judicial Division

did Commit Culpable Homicide Punishable with death in

that you caused the death of Alh. Aminu Maizinari by

shooting him on the neck with a gun with intent to kill him

as a result of which he died instantly you thereby

Committed an Offence Punishable Under Section 221(a) of

the Penal Code Law.

4. That you Solomon D. Orode on or about the 25th day

February, 2008 at about 445 hours at F.G.C Sokoto round

about together with Prince Efemena, Osaz and Ehigie (who

are now at large) within Sokoto Judicial Division while

armed

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with Firearms Robbed Shehu U. Kangiwa of his Car

(Honda) with registration number AA 855 KGW at Gun

point and thereby Committed an Offence Punishable Under

Section 1 (2) (a) of the Robbery and Firearms. (Special

Provision) Act Cap R11 LFN, 2004.

5. That you Solomon D. Orode on or about the 25/02/2008

at about 1510 hours along Sokoto Tureta Road together

with Prince Efemena, Osaz and Ehigie (who are now at

large) within Sokoto Judicial Division robbed Dr. Bello Bala

Shehu of his Car (Peugeot) 406, Prestige and other

valuables at gun point and thereby Committed an Offence

Punishable Under Section 1 (2) (a) of the Robbery and

Firearm (Special Provision) Act Cap RII LFN, 2004.

6. That you Solomon D. Orode on or about the 25/02/2008

at about 1530 hours along Tureta-Bakura road together

with Prince Efemena, Osaz and Ehigie (who are now at

large) within Sokoto Judicial Division robbed one Haruna

Ibrahim Moh'd at Gun point and thereby Committed an

Offence Punishable Under Section 1(2) (a) of the Robbery

and Firearms (Special Provision) Act Cap RII LFN, 2004.

7. That you Solomon D. Orode on or about the 25/02/2008

at about 1510 hours along

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Dange/Shuni- Tureta Road together with Prince Efemena

Osaz and Ehigie (who are now at large) within Sokoto

Judicial Division robbed one Khalifa Aliyu Ahmed and

Harshi Bello of their Car (Honda Accord) with Registration

number AA 512 ADM at Gun point and thereby Committed

an Offence Punishable Under Section 1 (2) (a) of the

Robbery and Firearms (Special Provision) Act Cap R11

LFN, 2004.

8. That you Solomon D. Orode on or about the 25th day of

February, 2008 at about 1535 hours along Tureta-Mafara

road together with Prince Efemena, Osaz and Ehigie (who

are now at large) with Sokoto Judicial Division robbed one

Daniel Adamu of the Car he was driving property of IBB

Nig. Ltd at Gun point and thereby Committed an Offence

Punishable Under Section 1(2) (a) of the Robbery and

Firearms (Special Provision) Act Cap R11 LFN, 2004.

9. That you Godwin O. Bini on or about the 18/2/2008

during Banks working hours, at Sokoto within the Sokoto

Judicial Division abetted the Commission of the offence of

Armed Robbery by depositing the sum of six hundred

thousand Naira into One Prince Efemena's Oceanic Bank

Account Number 1530001010911 to-aid and facilitate

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an Armed Robbery operation by him and his gang which

Robbery was committed in consequence of your abetment

and that you have thereby committed an offence punishable

under Section 6(a) of the Robbery and Firearms (Special

Provision) Act Cap. R11 L.F.N 2004.

After the charges were read and explained to the Accused

persons they all denied the commission of the offences

allegedly committed. The case thereafter proceeded to trial

wherein the prosecution called a total number of 7

witnesses and tendered 224 exhibits. After the close of the

case of the prosecution, counsel to the 2 Accused person

made a No case submission on behalf of the two Accused

persons. In a considered ruling, the trial Court dismissed

the No case submission made on behalf of the appellant

herein, directed him to enter his defence, while at the same

time the No case submission of the 2nd Accused (Godwin

O. Bini) was sustained and as a result, the said 2nd Accused

person was discharged. (See pages 191 – 202) of the record

of this appeal.

Consequently, the 1st Accused, (now appellant) entered his

defence and testified as DW1 but called no other witness.

After the close of the case

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for the respective parties, learned counsel for both sides

addressed the Court. In a reserved and considered

judgment delivered on 10/3/2016, at pages 253 – 254 of the

record of appeal, learned trial judge, Hon. Justice M. U.

Dogon Daji held as follows: -

“In the final analysis, having made a finding that the

prosecution has proved the charge of culpable

homicide punishable with death contrary to Section

221 (A) of the Penal Code beyond reasonable doubt

against you Solomon D. Orode, I convict you

accordingly.

Also having made a finding that the prosecution has

proved the charge of armed robbery contrary to

Section 1 (2) (a) of the Robbery and Firearms (Special

Provisions) Act Cap. R11 LFN 2004 beyond reasonable

doubt against you Solomon D. Orode, I convict you

according.”

Dissatisfied with the above judgment, appellant appealed to

this Court via a notice of appeal on 27/5/2016 containing

eight grounds of appeal. The said eight grounds of appeal

(excluding the particulars) are reproduced hereunder as

follows.

GROUND ONE

The decision of the Court below is unreasonable,

unwarranted and cannot be supported having regards to

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the evidence adduced at the trial.

GROUND TWO

The Court below misdirected itself in law and which

occasioned miscarriage of justice when having held that the

Court cannot on the basis of the alleged confessional

statements (exhibits L, O & P) containing the names of

alleged co-conspirators convict the appellants for the said

offence, it nonetheless turned around to make use of same

and relying on the said names and alleged weapons

mentioned in the said exhibits to convict the appellant for

the offences of Culpable Homicide punishable with death

contrary to Section 221 (a) of the Penal Code and Section 1

(2) (a) of the Robbery and Firearms (Special Provision) Act

Cap R11, law of the Federation of Nigeria, 2004.

GROUND THREE

The Court below erred in law and which has occasioned

miscarriage justice when it convicted and sentenced the

appellant to death for the offence contrary to Section 221

(a) of the Penal Code when the essential elements of the

offence were not proved beyond reasonable doubt.

GROUND FOUR

The Court below erred in law and which has occasioned

miscarriage of justice when it convicted and sentenced the

Appellant

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to death for the offence of Armed Robbery contrary to

Section 1 (2) (a) of the Robbery and Firearms (Special

Provision) Act Cap R11, Law of the Federation of Nigeria,

2004 when the essential elements of the offence were not

proved beyond reasonable doubt.

GROUND FIVE

The Court below erred in law when he prejudiced the

Constitutional Right to Fair Hearing of the Appellant

wherein in the consideration and or evaluation of the

evidence led at the trial at the Court below, it merely

considered the evidence in chief of the prosecution

witnesses without correspondingly evaluating and or

looking at the evidence elicited from the prosecution by the

defence under CROSS EXAMINATION and this weighed

heavily on the mind of the Court in arriving at its judgment

and this has occasioned a miscarriage of justice.

GOUND SIX

The Court below erred in law and which has occasioned

miscarriage of justice when having discharged the-co -

accused person in the joint trial conducted with the

appellant at the Court below, it nonetheless refused to

discharge and acquit the appellant but convicted and

sentenced the Appellant to death for the offences of

Culpable

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Homicide punishable with death contrary to Section 221 (a)

of the Penal Code and Armed Robbery contrary to Section 1

(2) (a) of the Robbery and Firearms (Special Provision) Act

Cap R11, Laws of the Federation of Nigeria, 2004.

GROUND SEVEN

The Court below erred in law which occasioned a

miscarriage of justice when it relied on Exhibits L, O and P

(alleged confessional statements) to convict and sentence

the Appellant for the offences of Culpable Homicide

punishable with death contrary to Section 221 (a) of the

Penal Code and Armed Robbery contrary to Section 1 (2)

(a) of the Robbery and Firearms (Special Provision) Act Cap

R11 Law of the Federation of Nigeria 2004 without testing

or determining the veracity or otherwise of the alleged

confessional statements for the purposes of determining its

probability.

GROUND EIGHT

The Court below erred in law when in convicting and

sentencing the appellant offences of Culpable Homicide

punishable with death contrary to Section 221 (a) of the

Penal Code and Armed Robbery contrary to Section 1 (2)

(a) of the Robbery and Firearms (Special Provision) Act

Cap, R11 Law of the Federation of Nigeria 2004,

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it denied the Appellant his constitutional right to fair

hearing thereby occasioning a miscarriage of Justice on the

Appellant when it failed and or neglected to consider all the

defence/s open up to the Appellant on the evidence

adduced before the Court below but considered only the

case presented by the prosecution against the Appellant.

From the eight grounds of appeal above, learned

appellant’s counsel, Ibrahim Abdullahi formulated five

issues for the determination of this appeal as follows:

1. Was the Court below right in law when it relied on

Exhibits L, O & P in convicting and sentencing the

appellant of the offences contrary to Section 221 (a)

of the Penal Code and under Section 1 (2) (a) of the

Robbery and Firearms (Special Provisions) Act Cap

R11, Laws of the Federation of Nigeria, 2004 having

discharged the appellant in relation to the offence of

Criminal Conspiracy based on the same Exhibits?

(Distilled from grounds 2 and 7)

2. Did the Court below infringe on the constitutional

Right of the appellant in the evaluation of the entire

evidence before it? (Distilled from ground 5).

3. Was the Court below correct in law

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when having discharged the appellant co-accused in a

joint trial whose facts are similar and tied to one

another, to proceed to convict and sentenced the

appellant for offences contrary to Section 221 (a) of

the Penal Code and under Section 1 (2) (a) of the

Robbery and Firearms (Special Provisions) Act Cap

R11, Laws of the Federation of Nigeria 2004?

(Distilled from ground 6)

4. Did the Court below consider all the defences

available to the appellant on record before convicting

and sentencing the appellant for offences contrary to

Section 1(2) (a) of the Robbery and Firearms (Special

Provisions) Act Cap R11, Laws of the Federation of

Nigeria 2004?

(Distilled from ground 8).

5. Whether a case of Culpable Homicide and Armed

Robbery Contrary to Section 1 (2) (a) of the Robbery,

and Firearms (Special Provision) Act Cap R11, Laws

of the Federation of Nigeria 2004 was made out to

justify the conviction and sentence of the appellant by

the Court below? (Distilled from grounds 1, 3 & 4).

Learned counsel for the respondent, Al-Mustapha Abubakar

Esq. adopts the five issues formulated by the appellant.

I have carefully considered the issues

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formulated and canvassed by counsel on both sides. I have

also considered deeply the contents of the record of appeal.

It is my respectful view that issues No.3 and 4 are wide

enough to dispose the entire appeal. I shall therefore

determine this appeal in the light of the said issues Nos. 3

and 4 of the appellant’s brief of argument. For clarity the

said issues are reproduced as follows: -

1. Was the Court below correct in law when having

discharged the appellant’s co-accused in a joint trial

whose facts are similar and tied to one other, to

proceed to convict and sentenced the appellant for

offence contrary to Section 1 (2) (a) of the Robbery,

and Firearms (Special Provision) Act Cap R11, Laws

of the Federation of Nigeria 2004.

2. Did the Court below consider all the defence

available to the appellant on record before convicting

and sentencing the appellant for offences contrary to

Section 221 (a) of the Penal Code and Section 1 (2)

(a) of the Robbery and Firearms (Special Provision)

Act Cap R11, Law of the Federation of Nigeria, 2004.

On issue No.1, learned appellant’s counsel contended that

in discharging the appellant of

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the offence of criminal conspiracy, the trial Court ruled out

any intention on the part of the appellant to commit the

substantive offences on the basis of Exhibits L, O & P. He

submitted that there was no justification for trial Court in a

joint trial to use the same Exhibits L, O & P to convict the

appellant for other offences comprised in the other

charges. He referred to IDIOK V. STATE (2010) 8

LRCNN 94.

He contended further that the two counts against the 2nd

accused person were conspiracy and Armed Robbery. The

trial Court considered and relied on the same set of

evidence and circumstances (i.e. purported tellers of both

the appellant and the 2nd accused person found in the

abandoned vehicle) in acquitting and discharging the

appellant’s co-accused while it relied on the same facts and

evidence in convicting the appellant. He thus submitted

that the discharge of the appellant’s coaccused by the trial

Court ought to as a matter of law lead to the discharge of

the appellant. He referred to EMMANUEL EBRI V.

STATE (2005) 1 NCC 1 at 18.

Learned counsel relied on Section 135 (1) of the Evidence

Act and Section 36 (5) of 1999

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Constitution in contending that the prosecution always

bears the burden of proof beyond reasonable doubt and this

burden never shifts. And that proof beyond reasonable

doubt, means proof of the essential elements of the offence.

He submitted that there was no evidence before the trial

Court to show that it was the appellant that shot the

deceased or that it was the appellant’s acts to wit, shooting

the deceased on the neck that led to the death of the

deceased and therefore, there was no evidence to show

who actually killed the deceased.

Still in argument, learned counsel submitted that there was

doubt as to what caused the death of the deceased and if

death cannot be attributed to the appellant, it follow that

the appellant cannot be held to have intended the probable

consequences of his purported acts. He referred to

OMOGODO V. STATE (1987) 5 SCJ 1 and AKPABIO V.

STATE (1994) 7 NWLR (Pt. 359) 635 at 670.

He finally submitted that the prosecution has failed to

establish the 2nd and 3rd ingredient of culpable homicide

beyond reasonable doubt against the appellant. He referred

to JUA V. STATE (2010) 4 NWLR (Pt. 1184) 217 at 261

and STATE V.

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OGUNBANJO (2001) FWLR (Pt.37) 1097 at 113 in

urging the Court resolve this issue in favour of the

appellant.

Learned counsel for the respondent on the other hand

contended that the appellant’s co-accused was never

charged for the offences of culpable homicide punishable

with death and armed robbery but for conspiracy and

abetment to commit armed robbery while the appellant was

alone charged and convicted for culpable homicide and

armed robbery. He submitted that it will be misleading to

say that the case of the appellant and that of the co-

accused are the same and arose from the same set of facts

and circumstances.

He also submitted that the name of the appellant’s co-

accused was never mentioned in Exhibits L, O & P and a

confessional statement is one mode on which a trial Court

can make use of in convicting the appellant in the

substantive offences of culpable homicide punishable with

death and armed robbery. He referred to NWACHUKWU

v. STATE (2007) 11 QCCR (Pt. 80) 110.

Learned counsel further submitted that although the

appellant denied shooting the deceased, by virtue of

Section 79 of the Penal Code, the appellant is

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still liable for the death of the deceased being victim of

their common intention with other members of his robbery

gang that ultimately caused his death. And that the

evidence of PW6 and PW7 with other Exhibits tendered at

the trial corroborated the appellant’s retracted confessional

statement. Thus, the trial Court was justified in rightly

convicting the appellant on the charges of culpable

homicide punishable with death as well as armed robbery.

He referred to ALARAPE V. STATE (2006) 5 LPCNCC

(Pt. 315) 377 and SABURI ADEBAYO V. A.G, OGUN

(2008) 3 NCC 305 at 326.

It is settled that the prosecution always bears the burden of

proof and the standard of proof of a criminal offence is

proof beyond reasonable doubt to secure conviction.

However, proof beyond reasonable doubt is not proof to the

hilt. It is not proof beyond all iota of doubt. Where all the

essential ingredients of the offence charged have been

proved or established by the prosecution, the charge is

proved beyond reasonable doubt. Consequently, proof

beyond reasonable should not be stretched beyond

reasonable limit. See ADEKOYA V. STATE (2017) 7

NWLR (Pt. 1565) 343.

The appellant in

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the instant case along with his co-accused were tried on

multiple counts of conspiracy, armed robbery, aiding and

abetting the offence of armed robbery. And the appellants

was alone tried for culpable homicide punishable with

death. While the appellant’s co-accused was discharged on

a no case submission, the appellant though not found guilty

for conspiracy, he was nonetheless found guilty convicted

and sentenced to death for the offences of armed robbery

and culpable homicide punishable with death.

The essential ingredients of armed robbery are:

(a) That there was a robbery or series of robberies;

(b) that the robbery or each of the robberies was an armed

robbery; and

(c) that each of the accused persons was part of or had

taken part in the armed robbery or robberies. See

IKEMSON V. STATE (1989) 3 NWLR (Pt.110) 455,

ALABI V. STATE (1993) 7 NWLR (Pt. 307) 511 BELLO

V. STATE (2007) 10 NWLR (Pt. 1043) 564, ADEKOYA

V. STATE (2017) 7 NWLR (Pt. 1565) 343 and F.R.N V.

BARMINAS (2017) 15 NWLR (Pt. 1588) 177.

The appellant in this appeal questions the rational of the

trial Court in relying on the same set of evidence, that is,

Exhibits

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L. O. & P in discharging the appellant’s co-accused and at

the same time convicting the appellant. And that it was on

the same evidence that the appellant was discharged and

acquitted for the offence of conspiracy at the trial Court.

I have stated the essential elements or ingredients of

armed robbery and as in other criminal cases, the

recognized methods in proving the said ingredients of

armed robbery are basically the same.

They are: -

(a) The confessional statement of the accused person,

(b) Circumstantial evidence, or

(c) Evidence of an eye witness.

It is to be noted that any of the above three methods would

suffice.

The essential ingredients for the offence of culpable

homicide punishable with death on the other hand are:

(a) that the deceased had died, and

(b) that the death of the deceased was caused by or

resulted from the act of the accused person, and

(c) that the act of the accused person was intentional or

with the knowledge that death or bodily harm was a

probable and not a likely consequence.

See OBIAKOR V. STATE (2002) 10 NWLR (Pt. 776)

612, SULE V. STATE (2009) 17 NWLR (Pt.

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1169) 33 and SHAIBU V. STATE (2017) 16 NWLR (Pt.

1592) 396.

Before proceeding to consider the evidence presented by

the prosecution in their efforts to establish the essential

ingredients of the offence of armed robbery and culpable

homicide punishable with death, it is pertinent to state

albeit briefly of background of the case, which culminated

to this appeal.

On 25th day of February, 2008 at about 14:30hours there

was an armed robbery operation at old market area of

Sokoto in which the armed robbers after shooting

indiscriminately, took away several Gold items and money

worth N25,000,000.00. In the process, they shot one of the

traders by name Alh. Aminu Maizinari before they fled.

While escaping, they also dispossessed other people of

their vehicles at gun point before been intercepted by

policemen at Tureta. As a result of a gun battle with the

police; 4 of the suspected armed robbers were killed and

some escaped leaving some items behind. Among the

recovered items were a Toyota RAVA 4 Jeep ash in colour

and a Honda (End of Discussion). Inside the said

abandoned vehicles was an Oceanic Bank slips belonging to

the appellant and his co-accused by

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name Mr. Godwin O. Bini. Other items recovered were 2

Ghana must go bags containing large quantity of golden

jewellries, cash amounting to N97,715,000, guns

conspiring of 2 pump action rifles, 1 K2 rifle, 2 locally made

short barrel guns, one locally made revolver (pistol), 8

empty magazines 146 live ammunitions, 3 empty shells, 40

live cartridges and 2 empty shells. The police used the said

Oceanic bank tellers in apprehending the appellant and his

co-accused at Oceanic Bank, Warri Branch in Delta State.

The appellant and his co-accused were charged.

In the quest to establishing the essential ingredients of the

offence of armed robbery, the prosecution (now

respondent) provided the evidence of PW6 and PW7 who

stated thus:-

At page 168 lines 9 – 13, PW6 had this to say:

“Three of them came to me with their guns and they

commanded me to lie down and I instantly obeyed

them. They then took the money I had in my stop and

all the golden jewellries. If I see any of them I cannot

recognize them.”

PW7 at page 168 lines 6 – 16 had this to say:

“This was on 25th February, 2008 around 3 o’clock in

the

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afternoon. Some people armed with guns came to our

shops and started shouting that we should lie down.

After that they came to our shops and carted away all

the golden jewelries and the monies we had in the

shop. They then ran away. They left about one hour,

then the police called us at CID Office; Sokoto. When

they came to our shop, they divided themselves into

groups and each entered a particular shop. After that

they shot at Alhaji Aminu Yarima. If I see any of them

I cannot recognize any of them because at that time

we could not look at their faces.”

In its judgment, the trial Court relied on the testimony of

PW6 and PW7 and Exhibit L at page 251 of the record of

appeal to hold that the respondent had established the fact

that there was robbery or series of robberies. That in view

of the said testimony of PW6 and PW7, Exhibits L, O and P

which are the confessional statements of the appellant as

well as Exhibits E & E1 two pump action rifle, Exhibit G –

AK2 rifle, the trial Court concluded that the robbery at old

market, Sokoto on the fateful day was indeed an armed

robbery.

On the participation of the appellant, it was the

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conclusion of the trial Court that the confessional

statement of the appellant, Exhibit L leaves no one in doubt

that the appellant participated in the said robbery

operation.

Learned appellant’s counsel queried the wisdom of the

above findings on the strength of an earlier finding of the

Court that the evidence of the respondent in this Court

cannot sustain a charge of conspiracy.

I need to point out here that conspiracy to commit an

offence is a separate and distinct offence and is

independent of the actual commission of the offence to

which the conspiracy relates. Therefore, the offence of

conspiracy may be fully committed even though the

substantive offence may be abandoned or aborted or may

have become impossible to commit. See BALOGUN V.

A.G, OGUN STATE (2002) 6 NWLR (Pt. 765) 512, and

ADAMU V. STATE (2017) 7 NWLR (Pt.1565) 459.

In the instant case, the only evidence in prove of the

offence of conspiracy against the appellant was his

confessional statement which the trial Court rightly held

cannot alone be a basis of conviction. As the saying goes, it

takes two to a tango, that the appellant’s confession binds

him alone unless it

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was adopted by his co-accused. Likewise, he cannot alone

conspire to commit an offence.

It was also argued for the appellant that when evidence

against two or more accused persons in a criminal case is

in all material respect the same, a doubt is resolved in

favour of one of the accused person, the same doubt should

be resolved in favour of the other or others. Therefore,

having discharged and acquitted the appellant’s co-

accused, the appellant should also be discharged and

acquitted.

I have reproduced the relevant charges in this case and the

involvement of the appellant’s co-accused only relates to

conspiracy and not the substantive offence of armed

robbery and culpable homicide punishable with death. The

law has long been settled that conspiracy is a separate and

distinct offence which may be proceeded upon even in the

absence of the substantive offence for which the conspiracy

relates.

Therefore, the reason for the acquittal of the appellant and

the 2nd accused for conspiracy was the failure of the

respondent to adduce sufficient evidence of agreement or

common purpose to commit the substantive offence of

armed robbery charged.

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The evidence on which the appellant was convicted was

based on the testimony of PW6 and PW7, Exhibits L, O and

P, as well as Exhibits E & E1.

It is not in every case where the accused is tried jointly

with another that the discharge of one must lead to the

discharge of another particularly where the evidence

against one accused is different from that against the other.

The case in IDIOK V. STATE (2008) 13 NWLR (Pt.

1104) 225 is on all fours with the situation in the instant

case in that the case of the appellant was not interwoven

and inseparable from that against the 2nd accused. The

2nd accused did not confess to either the offence of

conspiracy or that of the substantive offences of armed

robbery not to talk of the culpable homicide punishable

with death in which only the appellant was tried and

convicted.

Issue NO.1 is resolved in favour of the respondent.

The first segment of the appellant’s contention in respect of

Issue No.2 was whether the respondent has made out a

case justifying the conviction of the appellant for both the

offences of armed robbery and culpable homicide

punishable with death. I have shown that the

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respondent relied on the evidence of PW6 and PW7, as well

as the appellant’s confessional statement, Exhibits L, O and

P in establishing the guilty of the appellant for the offence

of armed robbery. Also in respect of the offence of culpable

homicide punishable with death, the respondent relied on

the evidence of PW6 and PW7 to prove that as a result of

the robbery attack on 25th of February, 2008 at sokoto old

market, Alhaji Aminu Maizinari lost his life.

The respondent relied on the appellant’s confessional

statement Exhibit L, O and P in linking the appellant with

the death of the said Alhaji Aminu Maizinari. And that

having established the cause of the deceased death through

the evidence of PW6 and PW7, the respondent submitted

that there was intention of causing death through gun shot

by the gang of armed robbers which included the appellant.

I have elsewhere in this judgment captured the relevant

portion of the evidence of PW6 and PW7 and also in exhibit

L at pages 50 – 51 of the record of appeal, the appellant

stated as follows:

“That on the 24/2/2008 at about 21hours, I and seven

others arrived at Sokoto town and

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myself and one Prince Efemena lodged in Sokoto

guest Inn in room 205. The other six people left for

inside town but I don’t know the exact place in the

town they went to. The names of the eight of us who

came to Sokoto on 24/2/2008 are: (1) Solomon D.

Orode, (2) Efemena, (3) James, (4) Bright, (5)

Stephen, (6) Evans Bright, (7) Ojaz and (8) Ehigie, all

of us are boys. Our purpose at coming to Sokoto is to

rob either Bank or market but we later chose to rob

in one Gold market (old market) at old market. On

the 25/2/2008 at about at about 09000 hours I went to

(bank) Oceanic Bank, Sokoto and used my ATM card

and withdraw a sum of Twenty Thousand, one

Hundred Naira (20, 100.00) only. After that I and

Efemena went to the Gold market and surveyed the

place. After surveying the place, the Efemena then

called them on phone and described the place for

them and they finally resolved to meet there by 1400

hours. At about 1400 hours on that day, I and

Efemena were already there waiting for them. I and

Efemena used the Honda Accord End of Discussion

and the other six members used Jeep and met us

there at the same 1400 hours. As for me, I did not use

gun in operation

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that day.

My role was to pack gold and money and other

valuable items after the other members took over

everywhere.…….''

By virtue of Section 28 of the Evidence Act, 2011 a

confession is an admission made at any time by the person

charged with a crime, stating or suggesting the inference

that he committed that crime. If made voluntarily, a

confession is deemed to be a relevant fact against the

maker. See SAIDU V. STATE (1982) 4 SC 41.

In NWACHUKWU V. STATE (2007) 17 NWLR (Pt.

1062) 31 at 70 the Supreme Court held that once a

confessional statement is admitted in evidence it becomes

part of the case of the prosecution and the trial Court is

bound to consider its probative value.

Did the trial Court consider the probative value of the

appellant confession in this case? At page 248 of the record

of appeal, learned trial judge held as follows:

“It is to be noted that the confessional statement

made by the Accused person to the police which was

admitted in evidence by this Court as Exhibit L was

admitted in evidence by this Court after conducting a

trial within trial and the additional statements of the

Accused

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person admitted without any objection from the

Defence counsel. Therefore, this Court is of the view

that despite the denial of the Accused person of

making Exhibits L, O and P this Court is prepared to

use the said confessional statement in determining

the guilt or otherwise of the Accused person.

However, even though this Court is prepared to make

use of Exhibits L, O and P, it is desirable that this

Court look for other evidence to corroborate the said

confessional statements of the Accused person.”

He went further to state that:

“I am of the view that the evidence of PW6 and PW7

who testified to the effect that on the fateful day

some people attacked them at Sokoto old market and

robbed them of their gold and other jewellries and in

the process one of their neighbor and business

partner was killed is corroborative of the confessional

statement of the Accused person in Exhibit L. The

various types of firearms tendered and admitted in

evidence before this Court as Exhibit A to A39, B &

B1, C to C 145, D to D21, E & E1, F, G, H & H1

respectively is also corroborative of the confessional

statements of the Accused person

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as contained in Exhibits L, O and P respectively.”

He concluded thus:

“All these exhibits lend credence to the confessional

statements of the Accused person contained in

Exhibits L, O and P.”

Thus, the trial Court had considered the probative value of

the appellant’s confessional statements and found that

despite the retraction of his confessional statements in his

evidence on Oath during trial, same did not adversely affect

the situation.

It was held in plethora of judicial decisions that where a

confessional statement is direct, positive and unequivocal

as to the admission of guilt by an accused person, the

statement is enough to ground the conviction of the

accused so long as the Court is satisfied with the truth of

such a confession. See NWAEBONYI V. STATE (1994) 5

NWLR (Pt. 343) 138, ODEH V. F.R.N (2008) 13 NWLR

(Pt. 1103) 1 and IKPO V. STATE (2016) 10 NWLR

(Pt.1521) 501.

The second segment of this issue was the allegation of the

failure of the trial Court to consider the defences of the

appellant which the learned appellant’s counsel argued had

infringed on the constitutional right of the

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appellant.

When an accused is being tried for any case whatsoever, it

behoves the Court to subject every items of facts raised for

or against him to merciless scrutiny because of the

principle of law ingrained in the Constitution that the

accused is presumed innocent. Therefore, nothing should

be taken for granted as the liberty of the accused is at

stake.

The appellant’s main complaint was that there was failure

by the trial Court to properly access the evidence elicited

from the prosecution witnesses during the cross –

examination and therefore the appraisal was one sided. He

made a particular reference to the defence of alibi raised

by the appellant while testifying as DW1and corroborated

by the evidence of prosecution witnesses.

Alibi is a question of fact that must be established or

discredited by credible evidence. Once the prosecution has

discharged the onus placed on it by adducing evidence

against the defence put forward by the accused, then the

onus shifts on the accused to call evidence to weaken or

discredit the evidence of the prosecution.

As a general rule, where a defence of alibi has been

promptly and properly

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put up, the burden is on the prosecution to investigate it

and rebut such evidence in order to prove the case against

the accused person beyond reasonable doubt. However, an

accused person has to first discharge the evidential burden

of setting up enough facts on which an alibi can rest before

the onus will shift on the prosecution to disprove the alibi.

See AGU V. STATE (1985) 9 SC 221 and AYAN V.

STATE (2013) 15 NWLR (Pt. 1376) 34.

In NDIDI V. STATE (2007) 13 NWLR (Pt. 1052) 633 at 665 –

666 it was held that raising the defence of alibi at the trial

is of little or no help to an accused person. Alibi as a

defence should be raised at the earliest opportunity and

that opportunity is in the interrogation room to enable the

police to investigate the alibi. The police cannot investigate

an alibi raised at the trial or during the trial.

I therefore agree completely with the submission of the

learned counsel for the respondent that the defence of alibi

by the appellant cannot avail him on the face of his

confessional statements that fixed him at the scene and

also the fact that he did not raise the said defence

timeously. Where as in this case, the

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prosecution adduces sufficient and acceptable evidence to

fix a person at the material time, his alibi is logically

demolished and his alibi became in effective. See STATE

V. EKANEM (2017) 4 NWLR (Pt. 1554) 84 at 107.

Finally, learned appellant’s counsel contended that there

was no evidence to show that it was the appellant that

caused the death of the deceased, insisting that the

absence of medical report is fatal to the case of the

prosecution.

The totality of the evidence of the prosecution was that

Alhaji Aminu Maizinari was killed by gun shot in the

process of the robbery operation that took place on the

25th of February, 2008 at the old market in Sokoto which

evidence was in tandem with the appellant’s confession.

The appellant however denied using the gun in the

operation that day. Where there is other evidence upon

which the cause of death can be inferred as in this case, it

is not vital to have resort to medical report. These facts

were quite sufficient upon which the trial Court rightly

found that the cause of the deceased death was the gun

shot by the said gang of armed robbers. And that whoever

shot a man with a gun

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deliberately must have intended to cause the death of such

a person. In other words, where the cause of death is

obvious, medical evidence ceases to be of any practical or

legal necessity especially where death is instantaneous or

nearly so. See BEN V. STATE (2006) 16 NWLR (Pt.

1006) 582. Also in the case of SHAIBU V. STATE

(Supra) the Supreme Court re-affirmed the legal position

that where a person dies shortly after an attack by an

accused, it is presumed that it is the accused that killed

him. Thus, medical evidence is not essential in establishing

the cause of death where the deceased was attacked with a

lethal weapon and died instantly.

Although on the evidence before the trial Court, the

appellant was not shown to have fired the gun that killed

the deceased, he was directly involved in the robbery

operation in which the deceased was shot dead. The

appellant and his cohert were jointly concerned in both the

armed robbery and in the murder of the deceased. See

ENWEONYE v. QUEEN (1955) 15 WACA 1 and

NWACHUKWU V. STATE (2002) 12 NWLR (Pt. 782)

543.

The appellant’s complaint of failure to consider his defence

and or infringement of his

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right to fair hearing by the trial Court are clearly not borne

out by the record of appeal. And any complaint that is not

borne out of the record of appeal comes to no issue.

Issue No.2 is also resolved against the appellant. This

appeal fails on the whole. It lacks merit and is accordingly

dismissed. The conviction and sentence passed on the

appellant by the trial Court are hereby affirmed.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour of

previewing the judgment of my learned, brother M. L.

Shuaibu, JCA. I agree with the reasons therein for the

conclusion that the appeal is bereft of substance. It

therefore deserves to be dismissed. I also dismiss it and

adopt the consequential orders made therein.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the

opportunity of reading the draft of the Judgment of my

learned Brother MUHAMMED L. SHUAIBU, JCA just

delivered and I am in total agreement with his reasoning

and conclusions in dismissing the Appeal as lacking in

merit. I also abide by other consequential made thereto.

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Appearances:

Ibrahim Abdullahi For Appellant(s)

Al-Mustapha Abubakar (ADPP, MOJ, SokotoState) For Respondent(s)

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