Onus is on prosecution to disprove an alibi – Appeal Court

UZO I. NDUKWE-ANYANWU, J.C.A. (delivering the leading judgment): This is an appeal against the judgment of the High Court of Lagos State by Hon. Justice O.A. William delivered on 17th day of April, 2014. The appellant was charged on a one count charge of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Law, […]

UZO I. NDUKWE-ANYANWU, J.C.A. (delivering the leading judgment): This is an appeal against the judgment of the High Court of Lagos State by Hon. Justice O.A. William delivered on 17th day of April, 2014. The appellant was charged on a one count charge of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. The appellant pleaded “not guilty”. The State, in proof of its case, called four witnesses and tendered seven exhibits. In defence of the charge, the appellant also called four witnesses (himself inclusive) and tendered two exhibits. At the end of the trial, the learned trial judge delivered its considered judgment, convicted and sentenced the appellant to death for the offence of Armed Robbery.
Being dissatisfied, the appellant filed a Notice of Appeal with seven (7) grounds. The appellant also filed his appellant’s brief on 21st day of November, 2014. In it, the appellant articulated three (3) issues for determination. They are as follows:-
1. Having regard to the fact that the appellant’s defence of alibi was not investigated by the respondent and the lower court’s finding that the appellant was not arrested at the scene of crime, whether the lower court was right to have convicted the appellant of the crime of armed robbery – Grounds 1 and 2.  Given the fact that Nigeria’s criminal justice system is accusatorial and the finding of the lower court to the effect that the appellant (as the accused) has the burden of adducing evidence to prove his alibi, whether the lower court was not wrong in finding the appellant guilty and convicting him of the crime of Armed Robbery – Ground 3.
3. Considering the position of the law on the failure to conduct an identification parade where same is necessary in a criminal trial; the fact that the respondent did not conduct an identification parade during the investigation of the crime of armed robbery for which the appellant was convicted and wrongful reliance by the lower court on evidence not properly before it, whether the lower court was not wrong in holding that the charge was proved. – Ground 4, 6 and 7.
I will adopt the issues raised by the appellant in the determination of this appeal. Appellant’s Issue 1 and 2 on alibi will be treated together as Issue 1 and the issues on identification will be treated as Issue 2.
The appellant was charged on a one count charge of armed robbery. The offence of robbery with firearms is committed when, at the time of the commission of the robbery, the accused is proved to be armed with firearms as an offensive weapon. See Michael vs. State (2002) 1 NWLR Pt.749 pg.500.
 To secure a conviction for Armed Robbery, the prosecution must prove the following:-
a. that there was an armed robbery;
b. that the accused was armed; and
c. that the accused, while with arm or arms participated in the robbery.
Once the prosecution proved the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused persons because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability or responsibility Olayinka vs. State (2007) 9 NWLR Pt.1040 pg. 561; Okosi vs. Attorney General, Bendel State (1989) 1 NWLR pt.100 pg.642; Martins vs. State (1997) 1 NWLR Pt.481 pg.355.
 The appellant, as accused in the lower court, raised a defence of alibi during his trial. The court in such circumstances is under a duty to consider any defence open to an accused or raised by an accused before conviction on a particular charge, see Ifejirika vs. State (1999) 3 NWLR Pt.593 pg. 59, Lado vs. State (1999) 9 NWLR pt.619 pg.369, Ihaebeka vs. The State (2000) 4 SC pt.1 pg.203, Oforlete vs. The State (2000) 7 SC pt.1 pg.80, Arabi vs. The State (2001) 12 NWLR pg.158.
Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.Sowemimo vs. State (2004) 11 NWLR Pt.885 pg.515.
In raising the defence of alibi, the accused must, at the earliest opportunity, furnish the Police with full details of the alibi, to enable the police to check the details. Failure of the accused to furnish particulars of the alibi, weakens the defence. See Sowemimo vs. State (supra).
The appellant in this appeal made two (2) statements to the police, Exhibit P4 and Exhibit P5.
Exhibit P4 was written by the appellant himself, therein he said he was at home. This was his first statement made after he was arrested for the first time. He escaped from the police the very next day. When he was re-arrested about Six (6) weeks later, he made the 2nd statement Exhibit P5 therein; he made a confessional statement which he rescinded during trial.
It was only in P4 that the appellant stated that he was at home at the time of the robbery. The appellant did not give sufficient particulars for the police to investigate the Alibi before he escaped from custody. It is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the Alibi, see Nsofor vs. State (2002) 10 NWLR pt.775 pg. 274, Balogun vs. Attorney General Ogun State (2002) 6 NWLR pt.763 pg.512.
An accused person is not required to prove his alibi, rather, the Onus is on the prosecution to disprove the alibi. Consequently once there is the slightest defence of alibi; the plea ought to be investigated. Failure of the prosecution, therefore, to investigate the alibi raised is fatal to the prosecution’s case Sowemimo vs. The State (supra), Aiguoreghian vs. State (2004) 11 NWLR pt.860 pg.367, Nsofor vs. State (supra).
The prosecution in this Appeal pinned the appellant to the scene of crime. The prosecution led evidence to show that the appellant and his two (2) colleagues now at large, confronted PW1, PW2 and PW3 twice as they were towing their vehicle to their destination. In those two incidents, they spent several minutes with the PWs. The PWs were able to identify him positively at an identity parade conducted by the Nigeria Navy.
The appellant and his colleagues gave one of the PWs his phone number which the police used to hunt down the appellant. The appellant was lured to Mr. Biggs in Alakija by a female Police officer where he was arrested.
The prosecution also led evidence, that the PWs positively identified the Nigeria Navy vehicle that was used by the appellant and his two accomplices in the armed robbery. The two accomplices who were also in the Nigeria Navy are now still at large. They quickly left the Nigeria Navy when it was obvious that the police and the Nigeria Navy were closing in on them. Furthermore, the PWs identified the two other accomplices with their passport photographs.
The appellant did not file adequate particulars of his Alibi even though DW1 and DW4 claimed they were with him. However, DW1 said he was not with him throughout the whole day of the robbery.

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The appellant was required by law to raise his defence of alibi at the earliest opportunity, so that it may be investigated. In Iheonunekwu Ndukwe vs. The State (2009) 2-3 SC pg. 7; (2009) 7 NWLR pt.1139 pg. 43, the Supreme Court per Mohammed stated as follows:
“It is not enough for the accused person to say to the court, that he was not at a particular place away from the scene of the crime. That he has to prove his assertion. That even if the Police have failed to investigate such an assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of Alibi. See Yanor and Anor vs. The State (supra). It can be seen that failure of the police to investigate, does not, automatically, mean failure of the prosecution’s case. There is a rider which places such onus, on the accused person on the balance of probability. See Ime David Idiok vs. The State (2008) 13 NWLR pt.1104 pg.223”.
In sum, what the above means is that where the accused raises the defence of alibi and it is not investigated, he can still be convicted if there is a stronger and credible evidence before the court; See Aiguoreghian vs. The State (supra), Nwosisi vs. The State (1976) 6 SC pg.109.
The appellant though he raised a defence of alibi did not give adequate particulars and, therefore, the police could not investigate. However, the appellant was positively fixed to the scene of crime. The prosecution adduced credible, cogent, unassailable, admissible and adequate evidence to pin the accused to the crime scene.
The appellant was positively identified by PWs because he was wielding the gun at the first interaction with the PWs. He was also said to be the one commanding the operation. The telephone number given at the scene of the crime to facilitate payment of what the appellant demanded was one number that connected him with the other accomplices and used in tracking him down. He did not deny this fact. The appellant and the Nigeria Navy vehicle used in the operation were positively identified by the PWs.
 The trial court in her judgment rejected the so-called confessional statement Exhibit P5 as the appellant resiled on it. There was no trial within trial conducted as to the authenticity of Exhibit P5. Therefore, the trial Judge was right in not placing reliance on it. However, the evidence of the PWs are identical to what was in Exhibit P5. The trial Judge rejected the alibi of the appellant and accepted the evidence of the PWs as being credible.
This issue is, therefore, resolved against the appellant.
ISSUE 2
The learned appellant’s counsel in his brief made heavy weather about the identification parade conducted by the police. Counsel submitted that the PWs did not identify the Appellant as their assailant in Panti Police Station. This is not so as the appellant was arrested after he had been lured to the Mr. Biggs in Alakija with the telephone number they left at the scene of crime. He escaped from the Police Station the very next day. He was rearrested about six (6) weeks later by the Nigeria Navy and taken to their barracks. It was there that an identification parade was conducted with the police IPO in attendance. The evidence of the identification parade conducted revealed that it was done according to law. More than twenty uniformed Naval officers were paraded. All the three PWs identified the appellant positively. The Naval vehicle used in the operation was also identified.
It is important to note that the PWs also identified the two accomplices now at large with passport photographs of over forty [40] Naval officers.
The PWS in their evidence (examination in chief and cross examination) that the appellant with his two (2) accomplices accosted them twice, molesting and terrorizing them with weapons. This gave the PWs the opportunity of observing their physical features well. The PWs said that the scenes were illuminated by the vehicle lights. They were also, at one point, in front of an industry that had security lights illuminating the scene.
In total, the PWs spent enough time with the appellant and his two (2) accomplices. This gave them ample time to really observe their physical features.
 The PWs positively, therefore, identified the appellant from a group of Naval officer paraded at the Nigeria Navy Barracks. The PWs also identified the other two (2) accomplices now at large from a host of passport photographs. It is important to state here the appellant alleged that the PWs did not identify him at the Police Station. It is in evidence that when the appellant was arrested he was taken to Panti Police Station from where he escaped the very next day. When he was re-arrested about six (6) weeks later, he was taken to the Nigeria Navy Barracks.
The PWs never saw him again after their ordeal until they positively identified him at the identification Parade conducted in the Nigeria Navy Barracks.
The identity of the appellant cannot be said to be in issue as the PWs had knowledge of the accused person. See Archibong vs. State (2004) 1 NWLR pt.855 pg. 488, Aladu vs. State (1998) 8 NWLR pt.563 pg.618, Igbi vs. State (2000) 2 SC pg. 67.
The courts have re-iterated that 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 like in this case. The PWs had ample opportunity to observe the features of their assailants which led to a positive identification of them. The PWs recognized the appellant and his accomplices.
Eyisi vs. The State (2001) 8 WRN pg. 1.
Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
b. where the victim or witness was confronted by the offender for a very short time; and
c. where the victim due to time and circumstance, might have had full opportunity of observing the features of the accused. See Ukpabi vs. State (2004) 11 NWLR pt.884 pg.439, Ebri vs. State (2004) 11 NWLR pt.885 pg.589.
Identification evidence is generally to show that the person charged with an offence is the same person who committed the offence. Where the trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Ukpabi vs. State (supra); Archibong vs. State (supra).
In the instant case, the trial judge satisfied itself about the identity of the appellant.
 The PWs recognized and identified the appellant and his other two (2) accomplices. The PWs were able to recognize them because they had a prolonged encounter with them. The area they were confronted was properly illuminated by the light from the factory and the head lamps of the vehicles.
The telephone communication with the appellant by one of the PWs positively placed the appellant at the scene of crime since the telephone number was given at the scene of crime. The appellant had not denied the telephone number and the way he was lured to the Mr. Biggs in Alakija where he was arrested for the first time. Even though he denied making the statement Exhibit P5, its content was in tandem with the evidence of the PWs. Exhibit P5 does not become inadmissible because the appellant denied making it or retracts the confession on oath. The confessional statement cannot also be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie vs. State (2007) 9 NWLR pt.1038 pg.30, Oche vs. State (2007) 5 NWLR pt.1027 pg.214, Okpong vs. Queen (No.1) (1961) 1 SCNLR pg.53.
This was what the trial Judge stated. She did not accept that Exhibit P5 was a confessional statement. However, Exhibit P5 was taken into consideration to decide what weight could be attached to it; Dibie vs. State (supra), Ukpong vs. State (supra). In this case, the evidence of the PWs were reliable and goes to no other conclusion other than the identity of the appellant was not in doubt.
It was also not in doubt that he participated in the robbery whilst carrying a weapon – military rifle.
The appellant had alleged some contradictions in the evidence of the PWs. The courts have held that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case.
It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court while also creating some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. See Theophilus vs. The State (1996) 1 NWLR Pt.423 pg.139, Chukwu vs. State (1996) 7 NWLR pt.463 pg.686.
This issue is, therefore, resolved against the appellant. The issues articulated and determined are all resolved against the appellant. This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the trial court and the sentence passed.
 Appearances      
Eubena Amedu, Doris Okosi, Oliver Eyan – for the appellants
E. I. Alakija (Mrs) – DPP, O. Akin-Adesomoju [Mrs) – CSC, O. A. Olugasa (Mrs) CSC, A. Omolua (Miss) – for the respondents
UZO I. NDUKWE-ANYANWU, J.C.A. (delivering the leading judgment): This is an appeal against the judgment of the High Court of Lagos State by Hon. Justice O.A. William delivered on 17th day of April, 2014. The appellant was charged on a one count charge of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. The appellant pleaded “not guilty”. The State, in proof of its case, called four witnesses and tendered seven exhibits. In defence of the charge, the appellant also called four witnesses (himself inclusive) and tendered two exhibits. At the end of the trial, the learned trial judge delivered its considered judgment, convicted and sentenced the appellant to death for the offence of Armed Robbery.
Being dissatisfied, the appellant filed a Notice of Appeal with seven (7) grounds. The appellant also filed his appellant’s brief on 21st day of November, 2014. In it, the appellant articulated three (3) issues for determination. They are as follows:-
1. Having regard to the fact that the appellant’s defence of alibi was not investigated by the respondent and the lower court’s finding that the appellant was not arrested at the scene of crime, whether the lower court was right to have convicted the appellant of the crime of armed robbery – Grounds 1 and 2.  Given the fact that Nigeria’s criminal justice system is accusatorial and the finding of the lower court to the effect that the appellant (as the accused) has the burden of adducing evidence to prove his alibi, whether the lower court was not wrong in finding the appellant guilty and convicting him of the crime of Armed Robbery – Ground 3.
3. Considering the position of the law on the failure to conduct an identification parade where same is necessary in a criminal trial; the fact that the respondent did not conduct an identification parade during the investigation of the crime of armed robbery for which the appellant was convicted and wrongful reliance by the lower court on evidence not properly before it, whether the lower court was not wrong in holding that the charge was proved. – Ground 4, 6 and 7.
I will adopt the issues raised by the appellant in the determination of this appeal. Appellant’s Issue 1 and 2 on alibi will be treated together as Issue 1 and the issues on identification will be treated as Issue 2.
The appellant was charged on a one count charge of armed robbery. The offence of robbery with firearms is committed when, at the time of the commission of the robbery, the accused is proved to be armed with firearms as an offensive weapon. See Michael vs. State (2002) 1 NWLR Pt.749 pg.500.
 To secure a conviction for Armed Robbery, the prosecution must prove the following:-
a. that there was an armed robbery;
b. that the accused was armed; and
c. that the accused, while with arm or arms participated in the robbery.
Once the prosecution proved the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused persons because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability or responsibility Olayinka vs. State (2007) 9 NWLR Pt.1040 pg. 561; Okosi vs. Attorney General, Bendel State (1989) 1 NWLR pt.100 pg.642; Martins vs. State (1997) 1 NWLR Pt.481 pg.355.
 The appellant, as accused in the lower court, raised a defence of alibi during his trial. The court in such circumstances is under a duty to consider any defence open to an accused or raised by an accused before conviction on a particular charge, see Ifejirika vs. State (1999) 3 NWLR Pt.593 pg. 59, Lado vs. State (1999) 9 NWLR pt.619 pg.369, Ihaebeka vs. The State (2000) 4 SC pt.1 pg.203, Oforlete vs. The State (2000) 7 SC pt.1 pg.80, Arabi vs. The State (2001) 12 NWLR pg.158.
Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.Sowemimo vs. State (2004) 11 NWLR Pt.885 pg.515.
In raising the defence of alibi, the accused must, at the earliest opportunity, furnish the Police with full details of the alibi, to enable the police to check the details. Failure of the accused to furnish particulars of the alibi, weakens the defence. See Sowemimo vs. State (supra).
The appellant in this appeal made two (2) statements to the police, Exhibit P4 and Exhibit P5.
Exhibit P4 was written by the appellant himself, therein he said he was at home. This was his first statement made after he was arrested for the first time. He escaped from the police the very next day. When he was re-arrested about Six (6) weeks later, he made the 2nd statement Exhibit P5 therein; he made a confessional statement which he rescinded during trial.
It was only in P4 that the appellant stated that he was at home at the time of the robbery. The appellant did not give sufficient particulars for the police to investigate the Alibi before he escaped from custody. It is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the Police to make a meaningful investigation of the Alibi, see Nsofor vs. State (2002) 10 NWLR pt.775 pg. 274, Balogun vs. Attorney General Ogun State (2002) 6 NWLR pt.763 pg.512.
An accused person is not required to prove his alibi, rather, the Onus is on the prosecution to disprove the alibi. Consequently once there is the slightest defence of alibi; the plea ought to be investigated. Failure of the prosecution, therefore, to investigate the alibi raised is fatal to the prosecution’s case Sowemimo vs. The State (supra), Aiguoreghian vs. State (2004) 11 NWLR pt.860 pg.367, Nsofor vs. State (supra).
The prosecution in this Appeal pinned the appellant to the scene of crime. The prosecution led evidence to show that the appellant and his two (2) colleagues now at large, confronted PW1, PW2 and PW3 twice as they were towing their vehicle to their destination. In those two incidents, they spent several minutes with the PWs. The PWs were able to identify him positively at an identity parade conducted by the Nigeria Navy.
The appellant and his colleagues gave one of the PWs his phone number which the police used to hunt down the appellant. The appellant was lured to Mr. Biggs in Alakija by a female Police officer where he was arrested.
The prosecution also led evidence, that the PWs positively identified the Nigeria Navy vehicle that was used by the appellant and his two accomplices in the armed robbery. The two accomplices who were also in the Nigeria Navy are now still at large. They quickly left the Nigeria Navy when it was obvious that the police and the Nigeria Navy were closing in on them. Furthermore, the PWs identified the two other accomplices with their passport photographs.
The appellant did not file adequate particulars of his Alibi even though DW1 and DW4 claimed they were with him. However, DW1 said he was not with him throughout the whole day of the robbery.
The appellant was required by law to raise his defence of alibi at the earliest opportunity, so that it may be investigated. In Iheonunekwu Ndukwe vs. The State (2009) 2-3 SC pg. 7; (2009) 7 NWLR pt.1139 pg. 43, the Supreme Court per Mohammed stated as follows:
“It is not enough for the accused person to say to the court, that he was not at a particular place away from the scene of the crime. That he has to prove his assertion. That even if the Police have failed to investigate such an assertion, the accused person, has the onus of adducing evidence on which he relies for his defence of Alibi. See Yanor and Anor vs. The State (supra). It can be seen that failure of the police to investigate, does not, automatically, mean failure of the prosecution’s case. There is a rider which places such onus, on the accused person on the balance of probability. See Ime David Idiok vs. The State (2008) 13 NWLR pt.1104 pg.223”.
In sum, what the above means is that where the accused raises the defence of alibi and it is not investigated, he can still be convicted if there is a stronger and credible evidence before the court; See Aiguoreghian vs. The State (supra), Nwosisi vs. The State (1976) 6 SC pg.109.
The appellant though he raised a defence of alibi did not give adequate particulars and, therefore, the police could not investigate. However, the appellant was positively fixed to the scene of crime. The prosecution adduced credible, cogent, unassailable, admissible and adequate evidence to pin the accused to the crime scene.
The appellant was positively identified by PWs because he was wielding the gun at the first interaction with the PWs. He was also said to be the one commanding the operation. The telephone number given at the scene of the crime to facilitate payment of what the appellant demanded was one number that connected him with the other accomplices and used in tracking him down. He did not deny this fact. The appellant and the Nigeria Navy vehicle used in the operation were positively identified by the PWs.
 The trial court in her judgment rejected the so-called confessional statement Exhibit P5 as the appellant resiled on it. There was no trial within trial conducted as to the authenticity of Exhibit P5. Therefore, the trial Judge was right in not placing reliance on it. However, the evidence of the PWs are identical to what was in Exhibit P5. The trial Judge rejected the alibi of the appellant and accepted the evidence of the PWs as being credible.
This issue is, therefore, resolved against the appellant.
ISSUE 2
The learned appellant’s counsel in his brief made heavy weather about the identification parade conducted by the police. Counsel submitted that the PWs did not identify the Appellant as their assailant in Panti Police Station. This is not so as the appellant was arrested after he had been lured to the Mr. Biggs in Alakija with the telephone number they left at the scene of crime. He escaped from the Police Station the very next day. He was rearrested about six (6) weeks later by the Nigeria Navy and taken to their barracks. It was there that an identification parade was conducted with the police IPO in attendance. The evidence of the identification parade conducted revealed that it was done according to law. More than twenty uniformed Naval officers were paraded. All the three PWs identified the appellant positively. The Naval vehicle used in the operation was also identified.
It is important to note that the PWs also identified the two accomplices now at large with passport photographs of over forty [40] Naval officers.
The PWS in their evidence (examination in chief and cross examination) that the appellant with his two (2) accomplices accosted them twice, molesting and terrorizing them with weapons. This gave the PWs the opportunity of observing their physical features well. The PWs said that the scenes were illuminated by the vehicle lights. They were also, at one point, in front of an industry that had security lights illuminating the scene.
In total, the PWs spent enough time with the appellant and his two (2) accomplices. This gave them ample time to really observe their physical features.
 The PWs positively, therefore, identified the appellant from a group of Naval officer paraded at the Nigeria Navy Barracks. The PWs also identified the other two (2) accomplices now at large from a host of passport photographs. It is important to state here the appellant alleged that the PWs did not identify him at the Police Station. It is in evidence that when the appellant was arrested he was taken to Panti Police Station from where he escaped the very next day. When he was re-arrested about six (6) weeks later, he was taken to the Nigeria Navy Barracks.
The PWs never saw him again after their ordeal until they positively identified him at the identification Parade conducted in the Nigeria Navy Barracks.
The identity of the appellant cannot be said to be in issue as the PWs had knowledge of the accused person. See Archibong vs. State (2004) 1 NWLR pt.855 pg. 488, Aladu vs. State (1998) 8 NWLR pt.563 pg.618, Igbi vs. State (2000) 2 SC pg. 67.
The courts have re-iterated that 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 like in this case. The PWs had ample opportunity to observe the features of their assailants which led to a positive identification of them. The PWs recognized the appellant and his accomplices.
Eyisi vs. The State (2001) 8 WRN pg. 1.
Although an identification parade is not a sine qua non to a conviction for a crime alleged, it is essential in the following instances:
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
b. where the victim or witness was confronted by the offender for a very short time; and
c. where the victim due to time and circumstance, might have had full opportunity of observing the features of the accused. See Ukpabi vs. State (2004) 11 NWLR pt.884 pg.439, Ebri vs. State (2004) 11 NWLR pt.885 pg.589.
Identification evidence is generally to show that the person charged with an offence is the same person who committed the offence. Where the trial court is faced with identification evidence, it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Ukpabi vs. State (supra); Archibong vs. State (supra).
In the instant case, the trial judge satisfied itself about the identity of the appellant.
 The PWs recognized and identified the appellant and his other two (2) accomplices. The PWs were able to recognize them because they had a prolonged encounter with them. The area they were confronted was properly illuminated by the light from the factory and the head lamps of the vehicles.
The telephone communication with the appellant by one of the PWs positively placed the appellant at the scene of crime since the telephone number was given at the scene of crime. The appellant had not denied the telephone number and the way he was lured to the Mr. Biggs in Alakija where he was arrested for the first time. Even though he denied making the statement Exhibit P5, its content was in tandem with the evidence of the PWs. Exhibit P5 does not become inadmissible because the appellant denied making it or retracts the confession on oath. The confessional statement cannot also be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie vs. State (2007) 9 NWLR pt.1038 pg.30, Oche vs. State (2007) 5 NWLR pt.1027 pg.214, Okpong vs. Queen (No.1) (1961) 1 SCNLR pg.53.
This was what the trial Judge stated. She did not accept that Exhibit P5 was a confessional statement. However, Exhibit P5 was taken into consideration to decide what weight could be attached to it; Dibie vs. State (supra), Ukpong vs. State (supra). In this case, the evidence of the PWs were reliable and goes to no other conclusion other than the identity of the appellant was not in doubt.
It was also not in doubt that he participated in the robbery whilst carrying a weapon – military rifle.
The appellant had alleged some contradictions in the evidence of the PWs. The courts have held that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case.
It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court while also creating some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. See Theophilus vs. The State (1996) 1 NWLR Pt.423 pg.139, Chukwu vs. State (1996) 7 NWLR pt.463 pg.686.
This issue is, therefore, resolved against the appellant. The issues articulated and determined are all resolved against the appellant. This appeal is unmeritorious and, therefore, dismissed. I affirm the judgment of the trial court and the sentence passed.
 Appearances      
Eubena Amedu, Doris Okosi, Oliver Eyan – for the appellants
E. I. Alakija (Mrs) – DPP, O. Akin-Adesomoju [Mrs) – CSC, O. A. Olugasa (Mrs) CSC, A. Omolua (Miss) – for the respondents