Armed Robbery

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AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal emanates from the judgment of the Court of Appeal of Ekiti division (the lower Court or Court below) delivered on the 5th day of December, 2012 which heard and affirmed the decision of the High Court of Justice Ekiti State (the trial Court). The trial Court’s judgment was delivered on 18th May, 2005.

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AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal is against the Judgment of Kaduna division of the Court of Appeal (“the lower Court” for short) (Coram I. O Akeju, Habeeb A. O Abiru and Oludekun A. Adefope. JCA) delivered on 18th of September, 2015 which substituted the death sentence passed by the High Court of Justice Kaduna State (the trial Court) on the respondent with 21 years Imprisonment

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Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Court of Appeal, Lagos Division (hereafter called the “Court below”) delivered on 9th of June, 2016, wherein the Court below set aside the judgment of the trial High Court of Lagos State, holden at Ikeja, which convicted the Respondent for the offence of conspiracy to commit robbery, and sentenced him to 21 years imprisonment, with hard labour.

The Respondent was charged along others, at the trial Court, as follows: STATEMENT OF OFFENCE – 1ST COUNT Conspiracy contrary to Section 403A of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003. PARTICULARS OF OFFENCE Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, conspired together to commit Robbery. STATEMENT OF OFFENCE – 2ND COUNT Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, robbed Kayode Babalola of his Siemens A55 phone. STATEMENT OF OFFENCE – 3RD COUNT Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, robbed Abak Noah Quincy of his Sender phone. STATEMENT OF OFFENCE – 4TH COUNT Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, robbed Macualy Busayo of his phone, MP3 player and wrist. STATEMENT OF OFFENCE – 5TH COUNT Robbery contrary to Section 402(1) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE Abraham Abiodun ‘m’, Michael Fafuru ‘m’ and Abiodun Akinbami ‘m’, on or about the 11th day of June, 2006, along Ikorodu Road, by Palmgrove Bus Stop, in the Ikeja Judicial Division, robbed Okezie Azubike Williams of Two Hundred Naira (N200.00).

The summary of facts leading to this appeal, is that by an amended Information dated 17th March, 2008, the Respondent, who was the 2nd Defendant, was charged along with two others, on five counts of Conspiracy to commit robbery and Robbery contrary to Section 403A and Section 402 (1) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. They all, pleaded “not guilty” and the matter proceeded to trial.

The Prosecution called only one witness, one Corporal Sunday Ogbamebor (PW1) and closed its case. PW1/IPO testified that while he and his team were on patrol on 11th June, 2006, they noticed a suspicious commercial bus and decided to tail it. At about 11 pm around Fadeyi bus stop, they noticed one of the passengers jumped off the bus unceremoniously and when interviewed he stated to the police team that his reason lay behind the fact that he was being taken off his agreed route. This fact strengthened their decision to continue pursuing the bus.

Upon reaching the top of the bridge at Fadeyi, they heard screams of distress of passengers and decided to bring the bus to a halt. When that was done the Respondent and two others were thereafter arrested upon identification by the passengers that they tried to rob them.

The Respondent’s counsel on his part filed a no case submission. In delivering his Ruling dated 22nd February, 2010 the trial Judge dismissed the 2nd – 5th counts (four counts) of Robbery against the Respondent and the other Defendants, but however held that the Respondent had a case to answer in respect of the first count of conspiracy to commit robbery.

Consequently, the Respondent’s Counsel opened its case by calling the Respondent DW2, and the other Defendants, as his witnesses. It is the case of the Respondent that he was not part of any conspiracy. He stated that on 12th June, 2006 as he was returning from his shop at Ladipo at about 6.00pm. He took a commercial motorcycle from Ladipo to Oshodi. On alighting from the motorcycle, he gave N500 note to the motorcyclist who became agitated as he did not have any change. He went out to look for change but with no success.

The motorcyclist who was now infuriated sped off and immediately thereafter, he was accosted by three men who demanded to know what he gave to the motorcyclist and he explained to them. Disbelieving him, they slapped and molested him with the butt of their gun and ordered him into their pick-up van and drove him to Shomolu Police Station.

At the Police Station he was tortured, however he denied making or signing any statement/document.

At the conclusion of the trial, the trial Court in a considered judgment found the Respondent and the 1st and 3rd Defendants guilty of the offence of conspiracy, and sentenced each of them to 21 years imprisonment, with hard labour, as aforestated.

The Respondent was aggrieved by the decision of the trial Court and lodged an appeal at the Court below, asking the following questions: (1) Whether the prosecution discharged the burden of proof required by law to establish the offence of Conspiracy against the Appellant. (2) Whether the learned trial Judge was right to have convicted the Appellant on Exhibit P1, the alleged confessional statement.”

In its judgment, the Court below set aside the judgment of the trial Court.

The Appellant is dissatisfied with the judgment of the Court below and appealed to this Court. The 2nd Amended Notice of Appeal, deemed filed on the 4th of March, 2021, is upon Three (3) Grounds.

At the hearing of the appeal on the 17th of March, 2022, Idowu O. Benson, Esq., of Counsel for the Appellant, adopted and relied on the Appellant’s amended brief of Argument, dated the 2nd of March, 2021, filed on the 3rd of March, 2021 but deemed filed on the 4th of March, 2021, wherein he raised the following two issues: 1. Whether the eminent Justices of the Lagos Judicial Division of the Court of Appeal were right in unanimously holding that the learned trial Judge wrongfully inferred conspiracy from the evidence of PW1 and Exhibit P2? 2.

Whether the eminent Justices of the Lagos Judicial Division of the Court of Appeal were right in refusing to rely on the trial Court’s findings of fact?

In the Amended Respondent’s brief of argument, a sole issue was formulated, to wit: “Whether the Court of Appeal was right to hold that the Appellant failed to prove the offence of Conspiracy to commit robbery against the Respondent beyond reasonable doubt?”

I have closely examined the issues identified in the respective briefs of the parties. I find that the Respondent’s sole issue has subsumed the two Issues raised by the Appellant. For this purpose, I take the view that the Respondent’s sole Issue is actually determinative of this appeal.

For the avoidance of doubt, the sole Issue reads thus: “Whether the Court of Appeal was right to hold that the Appellant failed to prove the offence of Conspiracy to commit robbery against the Respondent beyond reasonable doubt?”

It is submitted for the Appellant that a thorough evaluation of the facts presented and the evidence adduced at the trial Court, will reveal that all the ingredients of the offence of conspiracy to commit robbery had been established beyond reasonable doubt against the Respondent, based on the credible and cogent testimony of PW1, the eyewitness before the trial Court. Reliance was placed on the case Maikudi Aliyu v. The State (2013) LPELR-20748 SC.

Referencing the case of Yakubu v. The State (2014) LPELR-22401 (SC), learned counsel defined conspiracy to be an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. He maintained that from the evidence of PW1 at pages 126 – 127 of the Record, as well as the confessional statement of the Respondent, Exhibit P2, and that of the 1st and 3rd Defendants (Exhibits PI and P3), the common criminal intention of the Respondent and the other Defendants, can be inferred.

Learned Counsel for the Appellant contended that the Respondent in Exhibit P2, not only gave a graphic account of his activities with the 1st and 3rd Defendants, but that his version was in consonance with the testimony of PW1 as well as the statement of the 1st Defendant.

He invited this Court’s attention to some portions of Exhibit P2, at Pages 15 and 16 of the Record, where in his view, the Respondent established the common criminal intent to commit the offence of robbery. ​ He pointed out that the offence of conspiracy is inferentially deduced from the acts of parties thereto which are focused towards the realization of their common or mutual criminal purpose. These cases were relied on: Oduneye v. The State (2001) 2 SC 71; Daboh & Anor v. The State (2001) 2 SC 71; Segun Balogun v. A.G. Ogun State (2002) 2 SC (Pt. 11) 89.

He added that where a charge of conspiracy accompanies a charge for a substantive offence, the two charges remain separate and a conviction of conspiracy cannot fail merely because the Defendant had been acquitted of the substantive offence. Reliance was placed on the case of Akinrinlola v. The State (2016) LPELR-40641, amongst others.

It is the opinion of learned Counsel for the Appellant that the retraction of Exhibit P2 by the Respondent, only affected the weight to be attached to the statement and the trial Court relied not only on the Exhibit P2, but he also sought and found independent corroborative evidence from the evidence of PW1 whose evidence before the trial Court is one of a vital and material eyewitness. ​ He opined further that the finding of the Court below that the testimony of PW1, being that of an Investigative Police Officer, was not one of an eye witness, was misconstrued as there exists no rule of practice or evidence that restricts an investigating Police Officer from testifying as an eyewitness.

Reliance was placed on the case of Ogedengbe v. The State (2014) LPELR-23065, as well as Section 200 of the Evidence Act, 2011, as amended.

On the refusal of the Court below to rely on the trial Court’s findings of fact, learned Appellant’s Counsel quoted copiously, the judgments of the trial Court and the Court below, at pages 193 – 197 and 291 – 298 of the Records, respectively, and submitted that the Court below, failed to take cognizance of the findings of the trial Court, which is against the express admonition of this Court that appellate Courts ought not to interfere or disturb the findings of fact of a Court of first instance, except under exceptional circumstances. The case of Guardian Newspaper Ltd & Anor v.

Ajeh (2011) LPELR 1343 SC, amongst others, was relied on.

In conclusion, this Court is urged to resolve this issue in favour of the Appellant, allow the appeal, and set aside the judgment of the Court below. ​ In response to the above, it is submitted for the Respondent that the learned Justices of the Court below were right in holding that the Appellant failed to prove the offence of conspiracy to commit Robbery, against the Respondent, the fact being that the essential elements of the offence of conspiracy were not established against the Respondent.

Referring to the case of Kaza v. State (2008) 7 NWLR (Pt. 1085) 125, amongst others, Learned Senior Counsel for the Respondent set out the essential ingredients which the Prosecution must establish to ground the offence of conspiracy, and opined that the Court below was right to set aside the findings of the trial Court.

Learned Silk contended that nowhere in the testimony of the PW1, was the offence of conspiracy established, adding that the Court below was right to set aside the judgment of the trial Court, which was based mainly on suspicion. He cited and relied on the case of Al-Mustapha v. The State (2013) NWLR (Pt. 1383) 350. He maintained that the Prosecution failed to show that there was any physical or overt act by the Respondent, sufficiently proximate to proceed with the purported offence, or from which an agreement to commit an offence may be inferred, as rightly held by the Court below.

He argued that the case of Segun Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512, cited by the Appellant, is not on all fours with the instant appeal. According to him, in that case, evidence showed that the Appellant and his colleagues had a common purpose and agreement. They were together at the victim’s premises armed with a gun, where they demanded money from him. The PW1, who testified to the effect that he had known the Appellant therein, for more than 10 years, clearly saw him in his bedroom.

In the instant case however, there is no scintilla of evidence of meeting of minds, agreement or coming together between the Respondent and the other defendants to carry out any robbery, and thus Court is urged to so hold. He placed reliance on the case of Roda v. FRN (2015) 10 NWLR (Pt. 1468) 427.

It is the opinion of learned Senior Counsel for the Respondent that the Court below was right to hold that there was no sufficient evidence to establish Conspiracy, and Exhibit P2, (the extra-judicial statement of the Respondent), was unreliable to have been the basis for the Respondent’s conviction for conspiracy. ​ Further on Exhibit P2, which the Respondent had denied making, it is the submission of learned Senior Counsel that the where an accused person retracts his earlier statement to the Police, the weight to be attached to such a statement is governed by the tests laid down in the R v.

Sykes (1913) 8 CR APP R. 233, and approved in various decisions of this Court, including: Dawa v. The State (1980) 8 – 11 SC 236; and Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.

He noted that there is nothing outside of Exhibit P2 to make it probable the Court below was right to have set aside the judgment of the trial Court.

This Court is therefore urged to resolve this sole Issue against the Appellant, dismiss the appeal and uphold the judgment of the Court below.

The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in our Penal or Criminal Code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable.

The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. All the same conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See: Nwosu v. The State (2004) 15 NWLR (PT 897)466; Obiakor v. The State (2002) 10 NWLR (PT 776) 612. It is also trite that the Conspirators need not know themselves and need not have agreed to commit the offence at the same time.

But conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See: Aituma vs. State 2006 10 NWLR (PT 989) 452. Innocent v. State (2013) LPELR-21200.

The ingredients of the offence of conspiracy under the Penal Code are as follows: a) An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by illegal means. b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in the agreement, and c) Specifically, that each of the accused persons individually participated in the conspiracy. See: Musa v. The State (2016) LPELR-42803 SC; Obiako v. The State (2002) 6 SC (Pt. 11) 33; (2002) LPELR-2168SC.

Thus, it is hard and almost impossible for the Prosecution to procure and proffer, in proving the offence of conspiracy against an accused person, hard evidence of how the conspiracy was hatched by the conspirators. Therefore, direct evidence of a plot by the conspirators is hardly achievable. The bottom line of the offence of conspiracy, is the meeting of the minds among the conspirators for them to commit a criminal offence and they need not to meet physically and arrange how their criminal mission will be actualized.

However, it is from each of the overt actions of the conspirators, in furtherance of their criminal agreement, that the offence of conspiracy is inferred. And most often, it is from the testimonies of some of the accused persons at the trial, of how they each got linked with one another, that the offence of conspiracy becomes apparent.

Now let me briefly examine the evidence adduced at the trial.

The summary of the evidence of PW1, is that while they were on patrol they suspected a commercial vehicle and followed it. They noticed the occupants were wailing and crying. They pursued it with sirens and he heard a shot fired from the vehicle. They also shot at it and eventually stopped it. Some occupants ran away and they pursued and captured them. Then the passengers identified the three accused persons/defendants as the robbers. He took them to the Pedro Police Station and recorded their statement first, before he took them to his DPO and cautioned them.

He sought to tender the extra-judicial statement of the Respondent recorded by a certain Sgt. Ossai Chukwuka, who was said to be deceased. The Respondent’s counsel objected to its admissibility on grounds that it offended Section 35 of the old Evidence Act. After hearing arguments, the trial Court overruled the objection and admitted the statement in evidence as Exhibit P2.

Under cross-examination, he stated that it was the alleged victims who identified the robbers. He also stated that no investigations and findings were carried out on the bus.

The Respondent, in his testimony stated that he was not part of any conspiracy. He stated that on 12th June, 2006 as he was returning from his shop at Ladipo at about 6.00pm. He took a commercial motorcycle from Ladipo to Oshodi. On alighting from the motorcycle he gave N500 note to the motorcyclist who became agitated as he did not have any change. He went out to look for change but with no success. The motorcyclist who was now infuriated sped off and immediately thereafter, he was accosted by three men who demanded to know what he gave to the motorcyclist and he explained to them.

Disbelieving him, they slapped and molested him with the butt of their gun and ordered him into their pick-up van and drove him to Shomolu Police Station. At the Police Station he was tortured, however he denied making or signing any statement/document.

Simply put, he retracted his extra-judicial statement, Exhibit P2. ​ It has been an established practice that a Defendant in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. However, where the Defendant retracts his confessional statement during trial, that alone cannot render the statement inadmissible.

This is because retraction of or resiling from a confessional statement or denial by an accused person/Defendant of his having made such a statement does not ipso facto render it inadmissible in evidence. See: Alarape v. The State (2001) 5 NWLR (Pt.205) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.

But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration.

The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make it probable that the confession is true. In R. v. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to include: 1. Whether there is anything outside the confession to show that it is true. 2. Whether the statement is corroborated, no matter how slight. 3.

Whether the facts contained therein, so far as can be tested, are true. 4. Whether the accused person had the opportunity of committing the offence. 5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter. 6. Whether the confession of the accused person was possible. The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases, including: Dawa v. The State (1980) 8 – 11 SC 236; Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.

I have thoroughly perused Exhibit P2. It did not give any graphic details of the activities of the offence the Respondent is charged with. This much was conceded by the trial Court, when at page 195 of the Record, it held inter alia: “The 2nd Defendant in his statement Exhibit P2, did not give a graphic account of their activities but he stated that he was one of those alleged robbers arrested on the 11th day of June, 2006. He also gave account of some other robberies he participated in and their modus operandi.”

In commenting on the evidence adduced at the trial, the Court below, at pages 289 – 298 of the Record of Appeal, held conclusively inter alia: “For us to understand the case of the Appellant, the Court would go through the evidence of the witnesses in this case. The Prosecution only proffered evidence from only one witness, the IPO. The job of the IPO is to investigate crime and come to Court to testify as to the form or outcome of his investigations. From the evidence of the IPO, PW1, he saw a bus and he suspected the occupants of some nefarious activities.

He claimed that they followed the bus. He claimed they saw people fighting in the bus and could hear them screaming. He admitted that the patrol car had the siren on and the revolving lights on. The IPO claimed they were pursuing the bus and it stopped and one man jumped out. They interrogated the man who jumped out. The man said the bus was heading away from the destination he called. The man did not say there were robbers in the bus robbing people. The IPO did not get the number of the bus he had been following for a long time. He also did not produce in Court the people the Appellant robbed.

He did not recover any of the items stolen. He also claimed that the occupants of the vehicle fired at them and they returned fire by shooting at the tires of the bus. No weapons were recovered from the scene. The above information is the sum of the IPO’s evidence. The job of an IPO is to investigate crime. He said he was at the spot when the bus stalled and the passengers rushed out. In that rush he was able to quickly identify the passengers and the robbers. The IPO did not arrest all the passengers if he was there as they were rushing out of the vehicle.

The IPO could not recover any of the so called stolen items from the robbers neither could they recover any gun. The vehicle used in that robbery was neither detained and the driver of the vehicle was not identified either. In the usual run of events, if the bus was used in committing a crime, it is detained for some time until investigation is over. There was no mention of this aspect. You will recall that the IPO said that the patrol team shot at the tires of the vehicle to demobilize it. The IPO forgot to state what happened to the person who was hit by their bullets.

I believe that this charge is trumped up to cover for the shooting of an innocent man in a bus. How could the IPO in a patrol car with siren blowing and the blue lights on, see the fracas in the vehicle and hear the sound of the cries of the occupants of the bus. It is unimaginable. When the vehicle stalled the passengers scampered off as the policemen in the patrol car had shot at them. Probably the ones who couldn’t run away fast enough were arrested beaten and made to confess. The DWS had given different testimony of how they were arrested at various bus stops.

The other passengers who were robbed did not get to the police station to say how they were robbed and to state their missing items. How can there be a robbery, you arrested the robbers supposedly at the scene of crime and no items found including the firearms used. The IPO in any investigation is not usually an eye witness to any crime. He investigates alleged crimes reported to him. He interrogates the suspects, and takes down their statements. He visits the locus in quo for further investigations. He interviews witnesses and investigates alibi.

The IPO never gave in evidence, that he interviewed anyone. There was only one supposed eye-witness Kayode Babalola who he interviewed and obtained his statement, Exhibit P4 but was not called as a witness to corroborate the extra-judicial statement of the Appellant. The Appellant’s evidence in Court was at variance with his extra-judicial statement made to the deceased colleague of PW1 who does not appear to be a truthful witness from his anecdote of how the Appellant and two other accused persons were arrested.

The inconsistency rule is to the effect that where a witness statement to the police contradicts with the evidence in Court, the Court should regard him as an unreliable witness and discountenance both his statement to the police and his testimony in Court. It would be recalled that none of the items stolen was found on the Appellant nor with the other two accused persons.

The stolen items were not also found in the bus nor around where the Appellant was arrested… Because the evidence of the Appellant was in total contradiction with his extra-judicial statement, the Court would need to corroborate the evidence of PW1. Evidence in corroboration must be an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence has been committed but that the accused person has committed it.

Corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge… As it stands now, there is no corroboration of the testimony of the Appellant. The IPO/PW1 is not in any position to corroborate any evidence of the Appellant. Without corroboration of the tainted and unreliable evidence of the IPO, PW1, it would be difficult to convict the Appellant with this sort of evidence. Unreliable to say the least!

It is true that the conspiracy is difficult to prove except by inference…The prosecution could not prove that there is any agreement between the Appellant and the 1st and 3rd accused persons. Apart from the discredited Exhibit P2, nothing connects the Appellant with the crime. There was no proof that the Appellant knew the two other accused persons before now. He was arrested on a different date other than the date the crime was said to have been committed. The prosecution gave in evidence that the Appellant and the other two accused were arrested at the scene.

It turned out they were not arrested at the scene. It turned out they were arrested at different but stops on different days. It is true that the conspirators need not know themselves and need not to have agreed to commit the offence at the same time. A conspiracy can be inferred from the facts of doing things, towards a common end, where there is no direct evidence in support of an agreement between the accused persons …It is difficult to decipher how the PW1 would manufacture evidence that may be inferred to convict the Appellant of conspiracy.

The learned trial judge was therefore wrong to have believed the cock and bull story of the IPO, PW1. His story was incredible to say the least. At best he concocted the statement of the Appellant and the other two accused persons to cover their own crimes. The IPO, PW1 and his crew shot a passenger in the vehicle. They claimed the vehicle was used to rob some imaginary people. The vehicle was neither detained nor the driver investigated. How then could any iota of conspiracy be inferred from a botched investigation.

The learned trial judge was therefore wrong in inferring conspiracy from the evidence of PW1 and the so called Exhibit P2.”

I am satisfied and in total agreement with the finding of the Court below. The judgment is well researched and reasoned. Indeed the Court below effectively settled the matter of the offence charged and it would not be just, to split hairs and go into repetition of the issue of the Conspiracy, as the Court below has, done a thorough job of it. I adopt the judgment as mine and have nothing further to add.

I find in conclusion, that it was not established by credible evidence that the Respondent acted in concert; nor was there a meeting of minds to commit an unholy cause which can very properly be inferred from the surrounding circumstances of this case. There is no evidence before this Court, which suffices for the Court to make a finding of Conspiracy as charged. ​ The summation of all I have been saying, is that there is no iota of merit in this appeal. It is accordingly dismissed by me.

The judgment of the Court of Appeal, Lagos Division, delivered on the 9th of June, 2016, is hereby affirmed by me. Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, ABDU ABOKI, JSC has carefully considered and ably resolved the issues in contention in this appeal in the judgment just delivered. I agree with the reasoning and conclusion reached therein.

The duty on the prosecution in a criminal charge as prescribed by Section 139 of the Evidence Act, 2011, is to establish the guilt of the accused beyond reasonable doubt. This is in line with Section 36 (5) of the 1999 Constitution, as amended, which presumes him innocent until his guilt is proved. The onus remains on the prosecution throughout the trial and does not shift. In other words, there is no duty on the accused to prove his innocence. Furthermore, in the event of any doubt, it must be resolved in favour of the accused.

See Aiguoreghian & Anor Vs The State (2004) 3 NWLR (Pt. 860) 367 @ 396 F – H; 407-408 H – A, F.R.N. Vs Abubakar (2004) LPELR – 270 (SC) @ 22 C – D, Okashetu Vs The State (2016) NWLR (Pt.1534) 126, Nweze Vs The State (2017) LPELR -42344 (SC) @ 29 D- F.

The prosecution, in order to secure a conviction, must prove all the elements of the offence as contained in the charge beyond reasonable doubt. Although not required to call a host of witnesses, the prosecution must call such witnesses as would be necessary to discharge the burden of proof. See Nwaturuocha Vs The State (2011) LPELR-8119 (SC) @ 15-16 F – C, People of Lagos State Vs Umaru (2014) 7 NWLR (Pt.1407) 584, Obiakor Vs The State (2002) LPELR – 2168 (SC) @ 11-12 F- A.

My learned brother has adequately summarized the facts that gave rise to this appeal. I adopt the summary as mine.

After the respondent’s successful no-case submission with regard to counts 2, 3, and 4 of the charge, which were struck out, the prosecution was left with the burden of establishing beyond reasonable doubt that the appellant and his co-accused conspired to rob passengers a commercial bus along Ikorodu Road, Lagos on the 11th day of June, 2006.

“Conspiracy” was defined in Busari Vs The State (2015) LPELR-24279 (SC) as follows: “Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of [a] direct plot between the conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical.

Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy.” See also Jato Vs The State (2019) LPELR-49310 (SC) @ -13 D – G, Nwosu Vs The State (2004) 15 NWLR (Pt.897) 456, Oduneye Vs The State (2001) 2 NWLR (Pt. 697) 311, Njovens Vs The State (1973) 5 SC 17.

The ingredients of the offence are: (a) An agreement between two or more persons to do an illegal act or an act that is not illegal by illegal means – the agreement can be inferred from surrounding circumstances; (b) That the illegal act was done in furtherance of the agreement; and (c) That each of the accused persons participated in the conspiracy. See Enesi-Lukman Abdullahi Vs The State (2008) 17 NWLR (Pt.1115) 203, Kaza Vs The State (2008) LPELR- 1683 (SC) @ 11-13 D – A.

In the instant case, PW1 was a member of a patrol team that pursued the commercial vehicle in which the appellant, his co-accused and other passengers were riding. He was the Investigating Police Officer and incidentally also the only witness for the prosecution. In addition, the prosecution also relied on the appellant’s extra-judicial statement tendered as Exhibit P2, which they considered to be confessional.

As for the said Exhibit P2, while the appellant admitted committing other crimes, he did not admit to the crime with which he was charged. He only admitted that he was arrested on 11/6/2006.

Section 28 of the Evidence Act, 2011 provides thus: “A confession is an admission made at any time by a person charged with an offence, stating or suggesting the inference that he committed that crime.”

Exhibit P2 was not useful to the prosecution in the circumstances of this case. ​ With regard to the evidence of PW1, one of the material questions that arose is how he was able to determine from among the passengers in the vehicle (who all came down at the same time when it stalled), who were the alleged robbers and who were the genuine passengers? Unfortunately, none of the passengers who allegedly identified the appellant and his co-accused, were called to testify.

As rightly observed by the Court below, PW1, as an Investigating Police Officer, did not record the vehicle registration number of the bus he and his team had been tailing, he did not recover any of the items allegedly stolen, nor did he recover any weapons from the scene, even though he alleged that the occupants of the vehicle were firing at them; also, the driver of the vehicle was not arrested nor was the bus impounded. It begs the question as to the quality of the investigation conducted, if any.

My Lords, these are just a few of the lapses copiously alluded to in the judgment of the lower Court. I agree with their Lordships that there were yawning gaps in the prosecution’s case which ought to have raised serious doubt in the mind of the learned trial Judge as to the guilt of the appellant. The doubt ought to have been resolved in his favour. The lower Court was on firm ground when it did so and set aside the judgment.

I therefore agree with my learned brother, ABDU ABOKI, JSC, for these and more elaborate reasons stated in the lead judgment, that this appeal lacks merit. It is hereby dismissed.

The judgment of the lower Court delivered on 9/6/2016, setting aside the appellant’s conviction and sentence by the trial Court is affirmed. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I have had the benefit of reading in draft the leading judgment of my learned brother, Abdu Aboki, JSC just delivered and I entirely agree with his reasons to arrive at the conclusion that the appeal should be dismissed.

The position of the law is well settled that the offence of conspiracy is committed upon meeting of minds between two or more persons to further an illegal purpose or perform a legal act through an illegal means. Since the offence is usually concealed and hatched in secret by the conspirators, it is often difficult to prove physical contacts of the offenders. Howbeit, the offence is often inferred by circumstantial evidence pointing to the fact that indeed the offence has been committed. See David Idiok Vs. State (2006)12 NWLR (Pt. 993)1, Erim Vs. The State (1994)5 NWLR (Pt.346)522, Osondu Vs.

Federal Republic of Nigeria (2000)12 NWLR (Pt. 682)483.

A calm consideration of the event leading to the arrest of the Respondent as recounted by the PW1 (the IPO), which fact is extensively captured in the lead judgment, leaves one in doubt as per the integrity of the investigation carried out by the police, which evidence attempts to link the Respondent to the offence.

The Court below in its judgment, which I wholly endorse, critically examined the evidence as rendered by the Appellant before coming to the finding that the Appellant failed to establish the allegation that the Respondent worked in concert with other persons to commit the offence of robbery.

Again, it is without doubt that a confessional statement of an accused person is the best pointer to the truth of the role played by the accused person in the commission of the offence, however, a Court must be satisfied that the confessional statement is positive, direct and unequivocal before relying on it to convict. In otherwords, the Court must be satisfied that the accused intended to admit committing the offence. The confession should be corroborated by and consistent with other circumstantial evidences ascertained and proved at the trial. See Ikpo Vs.

The State (1995)9 NWLR (Pt.421) 540.

In the instant case, there is a clear disconnect between the evidence on record and the alleged confessional statement of the Respondent. It does appear to me that the police were hell-bent on trumping up charges on this Respondent and his co-accused persons to cover up for their act of killing an innocent commuter on 11th June, 2006.

It is for this, and more detailed reasoning expatiated in the leading judgment that I too find that this appeal has no merit and is accordingly dismissed. Judgment of the Court below is hereby affirmed. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, Hon. Justice Abdu Aboki, JSC has graciously accorded me the opportunity of a preview of the judgment just delivered. Undoubtedly, the reasoning reached in the judgment to the conclusive effect that the instant appeal is grossly devoid of merits, is in accord with mine. ​ Hence, having adopted the reasoning and conclusion as mine, I too hereby dismiss the appeal and affirm the said judgment of the Court below. Appeal dismissed.

EMMANUEL AKOMAYE  AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, ABDU ABOKI, JSC I completely agree with the reasoning, conclusions, decisions therein.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 24th May, 2012 which upturned the decision of S. O. Otu, J. of the High Court of Kogi State sitting at Okene delivered on 13/11/2009.

The facts that led to this appeal are as follows, The Respondent was arraigned on a two-count charge of criminal conspiracy and Armed Robbery contrary to Sections 97 (1) and 298 (c) respectively of the Penal Code. The Prosecution called 3 witnesses and tendered Exhibit “A”. The Respondent testified and called only one witness.

At the end of the trial, Counsel addressed the Court and in a considered judgment, the learned trial judge convicted the Respondent and sentenced him to a term of 12 years imprisonment on 13/1/2009. The Respondent being dissatisfied with the decision of the trial Court appealed to the Court of Appeal; Abuja Division by a Notice of Appeal filed on 5/1/2010. The Counsel for the respective parties filed and exchanged briefs of argument.

​The Court of Appeal in its judgment of 24/5/2012 upturned the judgment of the trial Court and in its place entered a verdict of discharge and acquittal in favour of the Respondent. The Appellant being dissatisfied with the decision of the Court below has now appealed to this Court on three 3 grounds of appeal.

The facts adduced by the Prosecution in proof of its case is to the effect that PW1 and PW2 who were Police Officers were on their way from the old Police Barracks to the new Police Barracks at Okene when they were accosted by the Respondent and one other person (hereinafter called the accomplice). The accomplice snatched the handset of the PW2 and ordered the Respondent to show the witnesses what he had with him. The Respondent then opened his shirt and the witnesses saw a pump action gun in his possession. The accomplice also snatched the sum of N25,000.00 from the PW2.

The PW2 later slapped the Respondent and the “pump action” gun fell from him. The PW1 then took the gun and hit the accomplice on the head and the accomplice fell down. The PW1 helped PW2 to overpower and subdue the Respondent. The accomplice who had been on the ground all these while stood up and bolted away. The Respondent who had been overpowered was arrested and taken to the Police Station.

The Respondent on the other hand stated on Oath that on the very day of the incident, he went to the bush to get some herbs on account of the fact that he was sick. While there in the bush some boys accosted and robbed him of N25,000. On his way back home through the Police Barracks, he encountered the Prosecution witnesses who alleged that he had robbed them. He denied being a robber and informed them that he too was also a victim of the robbery incident. The Prosecution witnesses slapped him, arrested him and took him to the Police Station at Okene.

There the Respondent made Exhibit ‘A’ before his case was transferred to the Criminal Investigation Department at Lokoja.

​The trial Court held that the Respondent by his extra judicial statement Exhibit “A” already admitted that he was in possession of a gun and it was unbelievable that the robbers gave him the gun. The Court found that the Respondent’s boss who gave evidence as DW1 did not have any knowledge of what transpired at the time material to the case. Based on the evidence of PW1 and PW2, the Court held that their testimony showed how the Defendant with the accomplice conspired to commit the offence.

The Respondent who had pretended to be sick had stayed back at work till 6.00pm in furtherance of the common and agreed criminal plan. The trial Court convicted the Respondent for the reasons given above. The Respondent being dissatisfied appealed to the Court below.

The Court of Appeal adopted the Respondent’s issues. The Court of Appeal held that PW1 did not include in his statement that his handset and N25,000.00 were stolen until at trial stage and that where a victim fails to state at the earliest opportunity to the Police vital information regarding the property stolen or the name of the assailant, the Court should be careful in accepting the story. The Court held further that there were contradictions in the story of the prosecution witnesses regarding how the money was stolen.

The Court of Appeal expunged Exh. ‘A’ the statement of the Respondent and held that since the trial Court did not make a specific finding on whether or not the Respondent made Exh. ‘A,’ the exhibit was inadmissible in evidence. The Court below also held that the evidence of the two Prosecution witnesses was unreliable since they could not give account of the stolen items and the exhibits i.e. gun used to rob them.

Notice of appeal to the Supreme Court was filed on 22nd August, 2013 with two grounds of appeal. The issues distilled by both parties are similar. In my view, the sole issue for determination here is as follows:- Whether upon a careful perusal of the totality of the evidence of the Prosecution, the Court below was right to have acquitted and discharged the Respondent.

In the Appellant’s brief settled by J. A. Akubo Esq., learned Counsel argued that since the Respondent admitted on oath that he was at the venue of the incident with someone who robbed him at the time of the incident and that he encountered PW1 and PW2, coupled with the fact that the evidence of both witnesses was not discredited during evaluation by the trial Court in its evaluation of the evidence before it.

Counsel cited Akeem Agboola v. The State (2013) 11 NWLR Pt. 1366 Pg. 619 at 641; Adeniyi Adekoya v. The State (2012) 9 NWLR Pt. 1306 Pg.539 at 582.

Counsel also contended that there are no substantial contradictions in the evidence of PW1 and PW2 to render same unreliable and unworthy of belief as the said examples of contradictions are minor, immaterial and inconsequential. Counsel submitted that only material contradictions would affect the case of the prosecution adversely. Counsel cited ISIBOR v. The State (2002) SCNJ 162 at 167; ENAHORO v THE STATE (1965) NSCC (Vol.4) Pg.98 at 113.

Learned Appellant’s Counsel argued that the substance of the evidence against the Respondent to wit that he held a gun while his accomplice robbed PW2 of his money and handset is not in issue. The specific denomination of Naira notes carried by the victim is irrelevant. Counsel also submitted that the finding of the Court below that it had to expunge Exh. A from the evidence of the prosecution is perverse.

​Counsel argued that the conclusion of the Court below that in the absence of a specific finding by the trial Court on the issue of whether or not Exh, ‘A’ was made by the Respondent, makes Exh. ‘A’ inadmissible is erroneous. Counsel argued that the trial Court gave a considered Bench ruling on Exh. ‘A’, the final address of Respondent’s Counsel at trial did not mention Exh. ‘A’, so no live issue was raised on Exh. ‘A’ regarding its admissibility before the trial Court or the Court of Appeal to warrant any pronouncement on it. Counsel cited FEDERAL MINISTRY OF HEALTH & ANOR V.

COMET SHIPPING (2009) 9 NWLR Pt.1145 Pg.193 at 220-221, WILSON v. OSHIN (2000) 9NWLR Pt.673 Pg.442, ODUNAYO v. THE STATE (1972) 8-9 SC.290. Counsel urged this Court to hold that the acquittal and discharge of the Respondent was perverse and unreasonable.

In the Respondent’s brief settled by K.C. WISDOM ESQ., Counsel argued that the Respondent during the trial had stated that Exhibit “A” was not the statement that he volunteered to the Police as he could not sign but thumb printed the document made by him. The Respondent under cross-examination affirmed this fact on page 32 lines 4 of the record. It follows therefore that the Respondent had retracted the statement allegedly made by him.

Counsel submitted that where a Defendant retracts an extra-judicial statement allegedly made by him, the Court should admit the statement and determine, in its judgment, whether the statement was actually made by the defendant or not. Counsel cited IKPASA v. Bendel State (1982) NCLR 152 AT 162.

​Counsel further argued that the learned trial judge did not at any stage in the consideration of this case advert his mind to the question of whether the Respondent made the statement tendered or not. There was therefore a straight issue of fact which should have been determined by the trial Court. The trial Court in this case did not determine the issue. Counsel argued that in the absence of a specific finding by a trial Court on an essential fact, an appellate Court cannot choose between the two versions in order to make a finding of fact which the trial Court did not make.

Rather, the only conclusion an appellate Court can draw from the conflicting evidence in that situation is the one most favourable to the Respondent. Counsel cited EJUREN v. POLICE (1961) ALL NLR 498 AT 501.

​Counsel further argued that the failure of PW1 to state categorically in his statement to the Police that he lost his handset and N25,000.00 in the course of the robbery is fatal to the case of the Prosecution. Counsel submitted that where a victim or eye-witness to a crime fails at the earliest opportunity to mention to the Police vital information such as the name of the Defendant or the property stolen by the Defendant, the Court should be careful in accepting his story.

Counsel cited ABDULLAHI v. STATE (2008) 17 NWLR Pt. 1115 Pg.203 AT PG. 216. Counsel argued that the identity of the person who took the handset and the money is very material in this case and in the absence of contradictory evidence regarding that fact, any doubt was rightly resolved in favour of the Respondent by the Court below.

OPINION My Lords, I would not go as far as to call Exhibit “A” “a confessional statement” as the two lower Courts and the parties have done, I must say that Exhibit A is not a truly confessional statement in that as improbable as it is, it is not a direct and positive confession to the crime of conspiracy and armed robbery by the Respondent. In Exhibit A, the maker states that he was robbed and the robber gave him the gun and he pursued the robber into the Police Barracks to return the gun and encountered the victims who arrested him. He denied the robbery.

It is apt to set out the contents of Exhibits A; I wish to state that I finished my primary school education from NA Primary School, Okene in the year 2002 and I have been learning Welding since then. My father is in Ogaminana while my mother Is in Idogido. Throughout this week we have been very busy at the shop welding some windows and doors and I was getting sick so I did not go to work yesterday. At about 1830 hours I came to the back of Otutu Secondary school so that I can cut mango tree back so that I can use it for herbs as one woman advised me.

I did not carry cutlass to cut the tree back. When I got to the mango tree two boys whom I did not know but can recognize ambushed me and collected the sum of two hundred and fifty naira from me. One of them was with a gun. He gave it to me to hold and was walking into the Police Barracks. I told him that I can’t hold the gun so I was pursuing him to give it back to him. The other one remained in bush. When I followed the other one into the Barracks, I was hiding gun under my shirt. I saw that he collected handset from one person inside the Barracks.

The person was struggling with him that was when I got there and asked him to collect the gun. He did not collect it. Then the gun fell on the ground. I began to go because I know that trouble must come. That was when one short officer held my shirt and hit my face. I fell on the ground and they arrested me. Then I was brought to the station by some people who were around. The other boy ran away. I don’t know the two boys before. I am not a thief. I don’t belong to any gang. I am a welder. Everybody knows me at Inike where I work. This is all my statement.

In any event, at the point of tendering the statement, the Respondent’s Counsel objected to its admissibility on the basis that the Respondent did not sign the statement he made to the Police but thumb printed whereas the statement sought to be tendered was signed. This Court had reiterated the settled position of the law on several occasions. There are two ways of retracting an extra judicial statement in a criminal trial whether confessional or not.

The first is by the Defendant and/or his Counsel admitting at the point of the statement being tendered by the prosecution that indeed the Defendant made the statement BUT was forced by threats, violence to his person, inducement etc. to make same by the Police. At that point, Defence Counsel must state categorically according to his brief whether it was by threats, violence or inducement of any gain etc. that the Defendant was made to confess.

The onus being on the Prosecution at all times to prove the guilt of the Defendant, the prosecution must discharge the onus of proof that indeed the Defendant volunteered the statement since an involuntary statement extracted by threats, inducement etc. from a Defendant contravenes Section 29 of the Evidence Act, and would be inadmissible for all purposes in evidence. To prove the voluntariness of the statement, the Court calls for and conducts a trial within trial to determine whether or not the statement sought to be admitted by the Prosecution was voluntarily made.

The second instance of retraction of a confessional statement is where the confession is wholly retracted, that is where the Defendant denies making the statement at all, denies the signature on the statement, claims he was forced to sign a statement he never made at all, or as in this case agreed he made a statement but says the statement sought to be tendered is not the one he made at all, etc. The possibilities of a full retraction are endless. In such an instance, there is no question whether or not the statement/confession is admissible.

The law is that it is admissible as evidence of an event which had occurred in the course of Police investigation into the charge and the Court is entitled to decide as a matter of fact whether in the circumstances, the Defendant actually made the statement or not. It is my view, that there need be no formal statement of the finding so long as the circumstances in which the offence was committed and the contents of the statement are considered to enable the Court make a just finding on its credibility.

Also, whether the statement is true in so far as it can be ascertained by other undisputed evidence. That is the probability test or credibility test. The Court then decides what weight to be attached to such a statement. See: BASIL AKPA v. THE STATE (2008) 14 NWLR Pt. 1106 Pg.72 at Pg. 98-99. The trial Court held thus, on Pg. 42 of the record:- “Even though the accused denied robbing the victims or belonging to a gang, a careful scrutiny of exhibit A shows its confirmation of the evidence of PW1 and PW2.

It is beyond comprehension that a victim of robbery will be given a gun by the robber who has just robbed him and walk away calmly to the Barracks. It is even more weird that the victim, the accused in this instance, will hold onto the gun, put it under his shirt and go after the robber with intention of giving the gun back to that robber. I have no doubt in my mind that while attempting to deny the allegation against him, the accused person has merely enmeshed himself more into the culpability net.

I have no doubt therefore that the accused himself has admitted being in possession of a gun on the day of incident when he was arrested and so the non-tendering of the gun cannot be fatal to the case of the prosecution.”

The Court below held as follows on page 109 of the record: In the instant case, the learned trial judge did not at any stage during the consideration of this case advert his mind to the question of whether the Appellant made the statement under consideration. It is therefore my view that in absence of a specific finding on the issue stated above on the issue whether or not exhibit “A” was made by the Appellant, this Court as an Appellate Court cannot choose between the two versions in order to make finding of fact which the trial Court failed to make.

In the circumstance, it is my view that the Appellant did not make the statement and it is hereby expunged from the Record.

I cannot bring myself to agree with the finding of the Court below to the effect that the trial Court made no specific finding on whether or not the Respondent made Exh. A. I cannot also bring myself to agree that the trial Court made no specific finding on the credibility and the probative value to be attached to Exhibit A. I am of the view that it is very clear on the record that the trial Court found the story of the Respondent in Exhibit A improbable and that its improbability supports the case of the Prosecution in all material particulars.

That much was made clear in the judgement of the trial Court. I am of the view that the Court below was wrong to expunge Exhibit A from the evidence of the Prosecution as it was properly admitted, and a finding was made on it by the trial Court. There is no doubt that the onus is on the Prosecution throughout to prove the case beyond reasonable doubt as required by Section 135 (1) of the Evidence Act. See: ANI v. THE STATE (2009) 16 NWLR (Pt.1068) 443 AT 457; STATE v. AIBANGBEE (1988) 7 SC (Pt.1) 96 AT 132-133; AMINU TANKO v. THE STATE (2009) 16 NWLR (Pt.1114) 597 AT 636.

I agree with the contention of the Appellant’s Counsel that the function of evaluation of evidence is essentially that of the trial judge. When he satisfactorily performs this duty, an appellate Court should not interfere. Ordinarily, an appellate Court will not interfere with the decision of a trial Court where so much of it turns on the credibility or reliability of the witnesses on the rational that ascription of probative value to such evidence is the primary function of the trial Court which saw, heard and assessed the witnesses.

The Appellate Court will not interfere merely for substituting its view for the view of the trial Court where the trial Court has properly evaluated the evidence and made findings of fact. See: ALHASSAN MAIYAKI v. THE STATE (2008) 15 NWLR (Pt.1109) 173 AT 202 & 211; OCHUKO TEGWONOR v. THE STATE (2008) 1 NWLR (Pt.1069)630 AT 654-655; DOKUBO-ASARI v. FRN (2009) 37 NSCOR (Pt.11) 1146 AT 1173)19; JOSEPH OYEWOLE v. KARIMU AKANDE & ANOR (2009) 15 NWLR (Pt. 1163) 119 at 143.

To prove armed robbery the Prosecution must adduce evidence that: a) That there was robbery;

b) That the robbery was committed while the accused person was armed with offensive weapons; c) That the accused person participated in the robbery.

My Lords, in this appeal, the victims who were Policemen stated their encounter with the Respondent on that day. The Respondent in his own evidence on Oath admitted that on that day he actually, encountered the Policemen while he was on the road – Barracks Road where the Policemen were robbed. The only difference is that he claimed to have also been robbed by two boys prior to his encounter with the policemen and denied robbing the Policemen. In my view this boils down to a case of Oath against Oath.

The strenuous point made by the Respondent relates to when precisely the handset and N25,000.00 of PW2 were stolen. Heavy weather was made by the Respondent on the issue of fact of whether the money was taken by the accomplice from PW2 or PW2 gave up the money after he was threatened with the gun being held by the Respondent.

​It is pertinent to note that PW1 and PW2 are ad idem in their evidence without contradictions that it was the Respondent herein who was in possession of the gun that was used by him to threaten the victims while the accomplice was the one who collected the handset and money of PW2 and ran away with them. The trial Court which saw and heard them believed their evidence in that regard.

The fact that PW1 and PW2 were able to establish in their uncontroverted evidence that they met two boys of whom the Respondent is one and the 2nd one at large shows that a case of criminal conspiracy and armed robbery had been proved by the Appellant against the Respondent herein.

I do not agree with the lower Court that in this case it is material whether PW1 gave the accomplice the money before or after he was threatened with a gun or whether or not the one victim knew the denomination of the money taken from the other victim. The record at the trial Court does not show that these issues were contested and that they constituted material contradictions. In ISIBOR v. THE STATE (2002) 2 SCNJ 162 at 167, this Court held that: It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant.

The contradictions must be shown to amount to a substantial disparagement of the witness or witness or witnesses.”

The most important issue raised against the credibility of the Prosecution witnesses was the failure of PW1 to state at the earliest opportunity that he lost his handset and the sum of N25,000.00 was taken from him by the Respondent’s accomplice. My Lords, the case of ABDULLAHI v. THE STATE (2008) 17 NWLR Pt.115 Pg.203 and cases in like ilk relied upon are not really relevant in the circumstances of this case. In ABDULLAHI v. THE STATE; relied on by the Respondent, the Defendant was not arrested at the scene of crime and the identity of the armed robbers was a live issue at trial.

Also in that case, the victims of the armed robbery said in their evidence that they knew the armed robbers before the date of the armed robbery incident but failed to mention their names at the earliest opportunity when they reported the case to their neighbors and the community leader as well as in their statements to the Police. The law on this point by this Court is as stated by KATSINA-ALU JSC (as he then was) inABDULLAHI v. STATE SUPRA as follows: The position of the law is this.

Where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from what-ever credibility the trial Court may wish to ascribe to his evidence. In addition, he should describe the clothes the accused wore at the scene of crime. Surely this is common sense and failure to adopt this commonsense approach would inevitably result in the acquittal of the accused”.

However, in the instant case, the Respondent was arrested at the scene of crime or caught in the course of committing the offence of armed robbery. The items stolen are known in the instant case. The handset and money were stolen by the accomplice of the Respondent, while the gun was found in possession of the Respondent who used it to threaten PW1 and PW2.

Finally, the failure of the Police to tender the gun is not fatal to the Prosecution’s case. The witnesses (victims) stated that the case was later transferred to the CID Lokoja. No issue was made at the trial of the absence of the gun. The circumstances when the failure to tender the gun would adversely affect the case of the prosecution is absent here. There was no controversy about the existence of a gun. There was no controversy about the type of gun used.

There was no issue of ballistic report in contention to warrant absolute certainty about the model of the gun or the type of bullets used. The Respondent said on oath that he was also robbed by some boys carrying a gun.

There is no reason to interfere with the findings of the trial Court relating to the credibility of the prosecution witnesses, the proper probative value to be placed on Exhibit ‘A’ which I agree lent credence to the evidence of the Prosecution witnesses which proved the charge against the Respondent beyond reasonable doubt.

In the circumstances, this appeal succeeds. The Judgment of the Court of Appeal delivered on 24/5/2012 is hereby set aside. I restore the conviction and sentence of the Respondent for conspiracy and armed robbery. Appeal Allowed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC just delivered. I am in complete agreement with the reasoning and conclusion advanced in the lead judgment which I hereby imbibe in allowing the meritorious appeal. I abide by the consequential orders contained in the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal deserves to be allowed.

On issue one, it is a general principle of criminal law that, contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court.

Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Jimmy v The State (2013) 18 NWLR (Pt 1386) 229; Enahoro v The State (1965) NSCC (vol. 4) 98 at 113; Isibor v The State (2002) 4 NWLR (Pt. 758) 741; Sele v The State (1993) 1 NWLR (Pt. 269) 276.

Furthermore, when the issue involves the credibility of witnesses, an appellate Court is handicapped to intervene. This is because the trial Court, being the master of facts and evidence, has the sacred duty of seeing and hearing witnesses. Therefore, having properly evaluated the evidence before it, an appellate Court is not allowed to intervene, Fatai v The State (2013) 10 NWLR (Pt. 1361) 1; Babatunde v The State (2014) 2 NWLR (Pt 1391) 298; Jibrin v F.R.N (2018) 13 NWLR (Pt.1635) 20.

I am of the firm view that the Court below was in error when it held that PW1 failed to give account of the items stolen at the earliest opportunity which had occasioned a miscarriage of justice, in effect challenging the credibility of PW1. Having the advantage of seeing and hearing the witnesses testify and having observed the demeanor of the witnesses, it is only the trial Court that is best suited to decide on the credibility of witnesses.

An appellate Court cannot substitute its own views for the views of the trial Court,Efe v The State (1976) 11 SC 75 at 81; Sanyaolu v The State (1976) 5 SC 37 at 44; Okonofua v The State (1981) 6-7 SC 1.

As regards issue two, my learned brother found that “Exhibit A” is not a confessional statement. I am also inclined to agree with His Lordship. A confessional statement is one in which the accused person admits to the commission of the offence for which he is charged, Solola v The State ​(2005) 11 NWLR (Pt 937) 460.

In the instant case, the accused person in his statement already reproduced in the leading judgment did not admit to the commission of the offence of armed robbery to which he is charged. Such statement may at best be referred to as an “extra-judicial statement”. The law is trite that an extra- judicial statement is an admissible evidence, Sadau v The State (1965) 1 All NLR 124. The effect being that the Court can legally rely on it.

Where an objection is raised to its admissibility, it is within the competence of the trial Court to act on it by determining the evidential value to be placed on it in determining the guilt of the maker, Balogun v FRN (2021) 11 NWLR (Pt.1787) 353.

Learned Counsel for the respondent objected to the admissibility of the so-called confessional statement at the trial Court, on the ground that the Respondent did not sign the statement but rather thumb-printed on it and that the statement sought to be tendered was signed.

Assuming, though not conceding that this was a confessional statement, this Court has held in a plethora of cases that a valid mode of retraction of confessional statement is where the accused person, though admits to making a confessional statement but goes on to explain to the Court that the confessional statement being tendered was not the one made by him; Onwumere v The State (1991) 4 NWLR (Pt. 186) 428 at 440.

The law is settled that the retraction of a confessional statement, especially one retracted in the manner done by the Respondent, does not render the confessional statement inadmissible. It therefore does not preclude the Court from relying on it, Alao v The State (2019) 17 NWLR (Pt.1702) 501; State v Ibrahim (2019) 9 NWLR (Pt. 1676) 137; Ikemson v The State (1989) 1 CLRN 1; Sule v The State (2009) 17 NWLR (Pt.1169) 33; Busari v The State (2015) 5 NWLR (Pt.1452) 343; Bisi v The State (2021) 12 NWLR (Pt 1790) 205; Iorapuu v The state (2020) 1 NWLR (Pt. 1706) 391.

It is however desirable at this stage, that the Court should, outside the confessional statement, look for some corroborative evidence. No matter how slight. State v Masiga (2018) 8 NWLR (Pt. 1622) 383; Hassan v The State (2001) 15 NWLR (Pt. 735)184.

Having established that “Exhibit A” was an admissible evidence, it is my view that the Court below was in error when it chose to expunge the evidence from the Record of Proceedings. Any evidence which is admissible in law, remains so and should not be excluded. It is for this and the more detailed reasons in the leading judgment that I too shall enter an order allowing this appeal.

UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Helen Moronkeji Ogunwumiju, JSC, advanced to me the draft copy of the lead judgment just delivered. I have read through and agree that the appeal be allowed.

The issue couched in the lead judgment is hereby adopted thus: Whether upon a careful perusal of the totality of the evidence of the prosecution, the Court below was right to have acquitted and discharged the Respondent.

​In the present appeal, the Respondent was arrested at the scene of the crime by PW1 and PW1, who happened to be police officers that the Respondent with his accomplice while armed, robbed of handset and money with a gun brandished by the Respondent. The Respondent’s case that, while sick, he went to the bush for herbs where some boys robbed him of N25.00 and on his way back home, he met PW1 and PW2, who arrested him and took him to the Okene police station; is obviously the most concocted and improvised defence to put up in any criminal case of this magnitude.

The failure to tender the gun cannot be a ground for the discharge and acquittal of the Respondent.

Once the prosecution proves the ingredients of armed robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is 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 responsibility. Nothing stops an accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police.

If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal. Per TOBI, JSC, in FATAI OLAYINKA V. THE STATE (2007) LPELR-2580(SC) (PP. 21-22 PARAS. G).

​In this while therefore, I agree with the decision of my learned brother, Helen Moronkeji Ogunwumiju, JSC, setting aside the judgment of the lower Court. I consider the lower Court’s judgment as perverse and fit for setting aside. The appeal hereby succeeds and is allowed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that there is merit in the appeal.

It is trite law that the prosecution is duty bound to establish the following essential elements beyond reasonable doubt to secure a conviction for the offence of armed robbery: a. That there was a robbery incident or series of robberies. b. That the robbery or each of the robberies was an armed robbery. c. That the accused was the armed robber or one of the armed robbers. See JOHN V. STATE (2019) LPELR – 46936 (SC); STATE V. SANI (2018) LPELR – 43598 (SC); AMEH V. STATE (2018) LPELR – 44463 (SC).

In the instant case, the evidence of PW1 and PW2 takes it beyond doubt that there was a robbery as they described how they were accosted by the Respondent and his accomplice and how they were robbed of a phone and the sum of N25,000.00.

The witnesses also proved the second ingredient of the offence beyond reasonable doubt. Their evidence that Respondent was in possession of a gun which was used to threaten and rob them of their possessions was not controverted at trial. From the foregoing, there is no gainsaying that the Appellant also proved that the Respondent was one of the robbers who attacked them.

​The Appellant having proved the elements of the offence beyond reasonable doubt, I see no basis for the lower Court’s setting aside of the conviction and sentence of the Respondent by the trial Court. For the above reasons and the more elaborate ones enunciated in the lead judgment, I too allow this appeal. I abide by the consequential orders made. Appeal allowed.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal, Kaduna Judicial Division delivered on 3rd July, 2015 in appeal No. CA/K/435/C/2014. In that appeal, the Court below acquitted and discharged this Respondent of the conviction and sentence imposed on him by the High Court of Katsina State for offences of robbery and culpable homicide.

The Respondent who was 3rd accused person, was arraigned together with four others before the High Court of Katsina State on a two count charge of robbery and culpable homicide as follows: “Count one: That you Babangida Abubakar alias Gidgo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Unguwa Koren Dorowa Katsina, on or about the 11th day of October, 2012 while in company of others now at large, while armed with sticks and matchets, attacked, wounded and left unconscious Sulaiman Abubakar and Usman Abubakar who are security guards of Mangal Plaza, Yahaya Madaki way, Kofar Kaura Katsina, you then burgled and entered the shop of one Alh.

Babangida Ali at the same address where you took away different types of G. S.

M. handsets valued at about the sum of Three Million Naira (N3 million) and money in the sum of Three Hundred and Fifty Two Thousand Naira (N352,000.00) and you thereby committed an offence punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.” “Count two: That you Babangida Abubakar alias Gidigo of Sabuwar Kofa quarters Katsina, Sani Idris alias Shamuloke of Kofar Marusa quarters Katsina, Abdulhadi Sadiq alias Baba Reza of Kofar Marusa quarters Katsina, Lawal Abubakar alias Dan Lawal of Kofar Marusa quarters Katsina and Idris Umar alias Dan Idi of Sabuwar Ungwa Koren Dorowa Katsina, on or about 11th day of October, 2012 while in company of others now at large, at Mangal plaza Yahaya Madaki Way Katsina, attacked and beat one Usman Abubakar with sticks and cut him with matchets which resulted in his death with the knowledge that death would be the probable consequence of your act and you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code”.

They were all found guilty on both counts and sentenced to death by hanging. The Respondent’s appeal to the Court below was allowed wherein he was accordingly acquitted and discharged. It is against that decision of the Court of Appeal that the Appellant has now appealed to this Court.

​The prosecution’s case is that on or about 11th October 2012, the Respondent in company of others now at large, while armed with sticks and machetes attacked and grievously injured two security men at Mangal plaza, Yahaya Madaki Way, Kofar Kaura Katsina, leaving them unconscious, which act subsequently resulted in the death of one of the security men. They also burgled the shop of one Alhaji Babangida Ali Mai-chanji (the PW1) at the same premise and stole the sum of N352,000.00 cash and G.S.M. handsets valued at about N3,000,000.00.

About two months after the robbery incident, one Muhammad approached PW2 to purchase battery for his phone. Upon close inspection, it was discovered that the phone which Muhammad sought to purchase battery for was actually one of the phones stolen during the robbery incident. He was therefore apprehended and upon interrogation he led the police officers to one Suleiman Kasuwar Tsaye who upon his arrest stated that the phone was given to him to sell by Idris Umar (the 5th accused person).

The police conducted a search in the house of Idris Umar from where 3 other handsets and several other stolen items were recovered.

On arraignment, all accused persons pleaded not guilty to both counts of robbery and culpable homicide. The prosecution called a total of 10 witnesses and tendered several exhibits including exhibits A and A1 which were this Respondent’s extra-judicial statements recorded in Hausa language and translated into English language. The Respondent raised an objection to the admissibility of his confessional statement on the ground that he was forced to thumbprint the statement.

Despite his objection, the learned trial Judge admitted the statements without a trial within trial and relied on same to convict the Respondent.

​At the Court of Appeal, it was found that the confessional statements were wrongly admitted for failure to test its voluntariness in a trial – within-trial. Exhibits A and A1 were therefore expunged from the record and the Respondent acquitted and discharged. It is against the judgment of the Court below that the Appellant has now appealed to this Court in his amended notice of appeal filed on 10th February, 2020 but deemed filed on 19th march, 2020.

Both parties filed and exchanged their briefs of arguments deemed filed on 19th March, 2020 respectively.

The appeal was set down for hearing on 30th September, 2021 wherein the Appellant distilled two issues for determination which were equally adopted by the Respondent as follows: (i) Whether the Court of Appeal was right in expunging the confessional statement of the Respondent and holding that there was no other evidence to ground his conviction (Ground 2); and (ii) Whether the Court of Appeal was right in holding that the Statement of the Respondent was not voluntarily procured. (Ground 1)

​A careful perusal of the two issues for determination proposed by the Appellant and adopted by the Respondent shows that the argument on both issues centre essentially on the decision of the Court below to expunge the Respondent’s confessional statement in exhibits A and A1 from record on the ground that they were wrongly admitted. In my opinion, the two issues are more or less the same except for the different words used to couch them.

I also hold the view that the first issue canvassed by the parties is sufficient to determine this appeal. I shall therefore adopt same as reproduced supra, although I shall reframe it to make it concise as follows: “whether the Court of Appeal was right to expunge the Respondent’s confessional statement from record for being involuntarily procured and wrongly admitted in evidence.”

Learned counsel for the Appellant in his argument laboured to distinguish the facts in the case of Uche Obidiozo & Ors v. The State (1987) LPELR-2170 (SC) from the instant case to show that there are differences between where an accused person raises objection to the voluntariness of his confessional statement and where an accused person denies making the statement.

Counsel submitted that where admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the Judge to determine whether or not the prosecution has established that it was made voluntarily in a trial within trial, which he contends is not the situation in this case. Counsel placed reliance on the case of Queen v. Eguabor 1962 vol. 1 All NLR part 2 page 287 to buttress his argument.

Learned counsel for the Appellant further argued that the objection of the Respondent was predicated on the fact that he did not make the statement and also on the fact that the Illiterate Protection Law was not complied with in the recording of his statement. Thus, the statement was admissible pending the weight to be attached to it. The expunging of the confessional statement on the authority of Uche Obidiozo v. The State (supra) was wrong in law and a clear departure from the established position in Queen v. Igwe 5 FSC 56-56, he contended.

Learned Counsel finally relied on the authorities of Augustine Nwangbomu v. The State (1994) LPELR-2105 (SC): Manu Galadima v. The State (2012) LPELR-15530 (SC) and Egboghonome v State (1993) 7 NWLR (pt. 306) 383 SC, to submit that the attitude of the Respondent towards the confessional statement is that of denial which goes to the issue of retraction and not voluntariness as misconstrued by the learned justices of the Court of Appeal. He therefore urged on this Court to resolve the issue in favour of the Appellant and allow the appeal.

On his part, learned counsel for the Respondent argued that the Respondent’s ground of objection to the admissibility of his confessional statement and the decision of the Court of Appeal to expunge the statement from record having been procured by force are on all fours with the facts and findings in the case of Obidiozo v The State (Supra).

Counsel submitted that the current position of our law is that when a Defendant alleges that his signature or thumb print on a written confessional statement was procured by force or intimidation, a trial-within-trial is mandatory to determine the voluntariness of the statement.

Learned Counsel argued further that by the authorities of Corporal Jona Dawa & Anor. V. State (1980) LPELR 932 (SC) and Obidiozo v. The State (supra), this Court has departed from the position laid down in Queen v Igwe (supra) where it was held that allegation that signature or thumb print on a written Confessional Statement procured by force will not warrant a trial-within-trial.

Finally, Counsel argued that the learned justices of the Court of Appeal were on firm ground to have expunged the Respondent’s confessional statement in exhibits A and A1 from record, same having been obtained by force and was not subjected to the voluntariness test in a trial-within-trial. He then urged this Court to resolve this issue in favour of the Respondent and dismiss the appeal.

In the appeal before us, the learned trial Judge held that the prosecution proved its case against the Respondent beyond reasonable doubt and therefore convicted the Respondent and sentenced him to death by hanging. His Lordship relied on the Respondent’s confessional statement recorded in Hausa language and translated into English language by PW5 who was a police officer. The trial Court relied on the statement and found the Respondent guilty as charged despite the fact that the Respondent raised an objection to its admissibility on the ground that he was forced to thumb print the statement.

​At the Court below, the Respondent’s confessional statement was expunged from the record on the ground that it was wrongly admitted, the trial Court having not conducted a trial-within-trial to ascertain its voluntariness. The Court went further to acquit and discharge the Respondent having found no other evidence linking him to the offence.

For reference, a portion of the vexed judgment of the Court of Appeal which is at page 177 of the record is reproduced as follows: “Therefore, as the law now stands, the Appellant’s thumbprint which he said he was forced to append on the exhibits A and A1 are part and parcel of the whole statement and cannot be detached or severed from the body of the statements. A claim that his thumbprint on the statement was not voluntarily appended on the statement is invariably a claim that the statement was not voluntary, which calls for a trial within trial.

The learned trial Judge with respect was in error to have declined to conduct a trial-within-trial. The result is that the statements were wrongly admitted. The consequence of that, to quote Agbaje JSC again Is that: – “I would expunge them from the proceedings in this case. ” I abide by that order of the Supreme Court and accordingly, I expunge exhibits A and A1 from the record.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Having expunged the statements from the record, the question of whether the Court could convict upon, the now expunged confessional statement does not arise. In the circumstance, this issue is resolved in favour of the Appellant that exhibits A and A1 were wrongly admitted and relied upon by the learned trial judge to convict the Appellant”

In his conclusion at page 184 of the record, the Court set aside the decision of the trial High Court convicting and sentencing the Respondent to death and thereby acquitted and discharged the Respondent.

My lords, the issue to be determined in this appeal is whether the prosecution proved the offences of robbery and culpable homicide made against the Respondent beyond reasonable doubt based principally on the extra-judicial statements made by the Respondent to the police which the trial Court admitted in evidence as exhibits A and A1.

The Court below disagreed with the findings of the learned trial Judge on the ground that the Respondent, having alleged that he was forced to endorse the confessional statement, the Court was duty bound to conduct a trial within trial to ascertain its voluntariness. The statement was therefore expunged from the record and the Respondent’s conviction and sentence set aside.

It is now well settled that in our criminal jurisprudence, the onus is on the prosecution to establish its case beyond reasonable doubt. See Josiah Orungua & Ors v. The State (1970) All NLR 266; (1970) LPELR 2780 (SC) – Olayinka Afolalu v. The State (2010) 16 NWLR (PT 1220) 584 – Miller v. Minister of Pensions (1947) 2 All ER 372 – Yongo v. Commissioner of Police (1992) 4 SCNJ 113; (1992) 8 NWLR (pt. 257)36 – Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516 – Babuga v. State (1996) LPELR-701 SC; (1996) 7 NWLR (PT. 460) 279 – Sections 135 and 138 of the Evidence Act, 2011 (as amended)

I need to emphasize that the standard of proof required of the prosecution is not proof beyond all shadow of doubt as absolute certainty is impossible in any human adventure. See State v. James Gwangwan (2015) 13 NWLR (pt 1977) 600 at 621.

​The law has made it explicit that there are three ways of proving criminal liability by the prosecution in any criminal trial, to wit: (a) Confessional statement of the accused. (b) Evidence of an eyewitness otherwise known as direct evidence; or (c) Circumstantial evidence which must be cogent and compelling leading to the irresistible conclusion that the accused committed the offence. See Agboola v. The State (2013) 8 SC M 157; (2011) 11 NWLR (pt 1366) 619 – Abdullahi Ibrahim v. State (2014) 3 NWLR (pt 1394) 305 – Alufohai v. The State (2015) 3 NWLR (pt. 1445) 172.

In the instant case, it seems to me that the prosecution relied largely on the Respondent’s confessional statement as the only substantial evidence linking him to the commission of the offence. I note that the Respondent took the earliest opportunity in Court to resile from voluntarily endorsing the confessional statement at the point of its being tendered in evidence. At that juncture, what was expected of the learned trial Judge was to conduct a mini-trial to ascertain the voluntariness or otherwise of the confessional statement before admitting it in evidence. See Auta v.

The State (1975) 4 SC 125; Gbadamosi & Ors v The State (1992) 9 NWLR (pt. 266) 465 at 480; (1992) 11- 12 SCNJ 1268; Effiong v The State (1998) 5 SCNJ 158 at 166; (1998) 8 NWLR (pt. 562) 362.

The law is trite and well established that the Court can admit and safely rely on a retracted confessional statement to convict an accused person once the Court is satisfied that such statement is voluntary, direct, positive, unequivocal and a truthful account of what transpired. The law has however made it desirable for the Court to look for some corroboration outside the confessional statement, to determine if the circumstances made it probable that the confession was true. See Haruna v. A-G, Federation (2012) 9 NWLR (pt. 1306) 419 – Alarape v. State (2001) 5 NWLR (pt. 705) 79 – Osuagwu v.

The state. (2013) 5 NWLR (pt. 1347) 360.

In otherwords, a confessional statement remains the best form of evidence against an accused person once it is proved to be voluntary, direct and positive. The Court can rely solely on it to ground conviction. See Edhigere v. The State (1996) 8 NWLR (pt. 464) at P. 1; – Oseni v. State (2012) 5 NWLR (pt 1293) 351 – Egboghonome v State (1993) 7 NWLR (pt. 306) 383.

​At this juncture, I consider it pertinent to make a distinction between a situation where an accused person completely denies making a confessional statement and where an accused contends that he made or endorsed the confessional statement under duress. In the first situation, the Court is at liberty to admit the statement without having to conduct a mini-trial to determine its veracity.

Only that the weight to be attached to the statement would be determined after subjecting it to the six-way tests prescribed by the law as follows: (i) Is there anything outside the confession to show that it is true? (ii) Is it corroborated? (iii) Are the statements made in it true as far as can be tested? (iv) Was the prisoner one who had the opportunity of committing the offence? (v) Is the confession possible? (vi) Is the confessional statement consistent with other facts which have been ascertained and have been proved? ​Once the statement has been subjected to these tests and it is ascertained that there are other facts outside the confession to corroborate it, the law decrees that same can be relied upon to ground conviction.

See R v. Sykes (1913)8 LR APP R-233 approved and applied in Dawa v. State (1980) 8-11 SC 236; Musa v. State (1995) 9 NWLR (pt. 421) 540 at 554. On the second scenario where the accused person alleges that he made the statement or endorsed same under duress or some form of influence by a person of authority, the law requires that a trial-within-trial must be conducted to ascertain the voluntariness of the statement. See State v. Gwangwan (supra).; Obasi Onyenye v. The State (2012) LPELR 7866(SC) This issue was primarily considered in the case of Akpa v.

State (2008) 14 NWLR (pt. 1106) 1 at 98 where this Court per Ogbuagu, JSC observed as follows: “… trial within trial is ordered and conducted where the voluntariness of the making of the statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise.

When the Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court”.

Flowing from the above and with due respect to the learned trial Judge, the evidence of the Respondent did not amount to a retraction. Rather, he challenged the voluntariness of the evidence extracted from him by the police by use of force. He did not contend the fact that the statement was recorded in Hausa language by PW5 and translated into English Language after it had been read over to him. His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement.

Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case. The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.

​Now, having affirmed the judgment of the Court below expunging the Respondent’s confessional statement from record, I shall consider if there exist any other evidence which linked the Respondent to the offence charged.

I must say that I have carefully perused the record of appeal and the only mention of the Respondent is in the evidence of PW5, the police officer who recorded the statement of the Respondent already expunged by the Court below and the evidence of DW4, Lawal Abubakar, in exhibit A1 as well as the evidence of DW5, Idris Umar in Exhibit H1 wherein the Respondent was named as one of the persons who participated in the crime.

​The law is settled that an accused person’s confession is only evidence against him and not against a co-accused person except otherwise adopted by the co-accused. Putting it differently is to say that where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices but himself alone.

The Court cannot therefore rely on the confession of one accused person to convict another accused person unless the confessional statement is voluntarily adopted by the co-accused, although it can be used as a corroborating evidence where other pieces of vital evidences exist pointing to the fact that the co-accused committed the offence. See Ozaki v. State (1990) LPELR-2888 (SC); (1990) 1 NWLR (pt. 124) 92 Evbuomwan v C O P (1961) NWLR 257 – Section 199 of the Evidence Act 2011 (as amended) In the case of State v.

Gwangwan (supra), my learned brother, Fabiyi, JSC, in his contributory judgment, had this to say: “A statement made to the Police by an accused person implicating a co-accused is not admissible against that accused. Where the prosecution intends to use the statement against a co-accused, as herein, then the prosecution is bound to make a copy of the incriminating statement available to the co-accused for him to reject or adopt same. There is nothing in the record that same was carried out by the prosecution. The decisions in the cases of Mumuni v. The State (1975)6 SC 79; Chukwueke v.

The State (1991) 7 NWLR (pt 205) 604 and Yongo v. Commissioner of Police (1992) 8 NWLR (pt.257) 36 are in point here.”

​In the instant case, the Court below was on firm footing to discountenance the inference that the statements of DW4 and DW5 implicated the Respondent as long as he did not adopt same.

From all that I have said above, I hold the firm opinion that the Court below was in order when it held that: “the result is that there is nothing on record linking the appellant to the crime committed.”

To my mind, having expunged the Respondent’s confessional statement from the record, the prosecution had no other evidence to sustain the charge against the Respondent. There was indeed no evidence to infer the offences of robbery and culpable homicide. This issue is resolved against the Appellant and in favour of the Respondent.

It has now become trite in our criminal law jurisprudence that it is better that 10 guilty persons go free than that one innocent person be convicted. This Court for all intent and purposes frowns at technical justice but in a situation where the law prescribes the manner in which justice must be attained, circumventing such set down rule would certainly vitiate justice. My point here is that the learned trial Judge fell into a grave error by not conducting a trial within trial to ascertain the voluntariness of the Respondent’s confessional statement.

Having said that, I affirm the decision of the Court of Appeal which set aside the judgment of Katsina State High Court in this case. I also affirm the order setting aside the conviction and sentence of the Respondent to death by hanging. I uphold the order of acquittal and discharge of the Respondent rendered by the Court below. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother Okoro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also consider the appeal unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment of my learned brother HON. JUSTICE JOHN INYANG OKORO JSC. I agree with the reasoning and conclusion that this appeal is wholly without merit and should be dismissed.

​The Respondent had been convicted along with four others for the offence of Armed Robbery and Culpable Homicide punishable with death for attacking two of the guards at the Mangal Plaza in Katsina town with sticks and machetes before burgling some shops therein and stealing several electronic items including handsets etc. One of the security men attacked later died of his injuries. The Respondent appealed against his conviction to the Court below where he was acquitted and discharged. The State has now appealed against the judgment of the Court below being dissatisfied with same.

The case of the prosecution is that during police investigation, the 5th Defendant at the trial had named the other four Defendants as co-conspirators and actors in the armed robbery incident. The Court below found that even though the Respondent complained at the appropriate time (while the confessional statement was about to be tendered) against the voluntariness of the statement, the trial Court did not order trial-within-trial to test the admissibility of the statement which is the appropriate procedure in such matters.

I agree with the Court below that this was grave error on the part of the trial Court and the Court below was right to have expunged the said Exhibits A and A1 from the record.

​The Respondent had been convicted mainly on the said Exhibits A and A1 and the extra-judicial statement of the 5th Defendant who implicated him in the offences. The extra-judicial statement of a co-defendant is only evidence against the said Defendant in a criminal trial. See Suberu v. The State (2010) 8 NWLR Pt. 1197 Pg. 586, LPELR-3120 (SC) Pg. 16 Paras A-B; Akinsuwa v. The State (2019) LPELR-47621 (SC) Pgs. 19-23 Paras F-A, Dibie v. State (2007) 9 NWLR (Pt. 1038) Pg. 30 and Idowu v. State (2000) 7 SC (Pt. 11) Pg.50.

By Section 29 (4) of the Evidence Act, it remains a statement and not the evidence of that co-defendant. However, where the co-defendant repeats and adopts his extra-judicial statement implicating another defendant on oath, his evidence and that statement on oath can alone be used to convict the co-defendant after the Court has warned itself of the need to exercise caution in that regard. See Dairo v. The State (2017) LPELR-43724 (SC); Yongo v. C.O.P (1992) LPELR 3528 (SC), Section 29(4) of the Evidence Act.

For these and fuller reasons given by my learned brother, I dismiss the appeal and affirm the judgment of the Court below. Appeal Dismissed.

​ABDU ABOKI, J.S.C.: I had a preview of the judgment prepared and just read by my learned brother JOHN INYANG OKORO, JSC. I am in entire agreement with the reasons and conclusions arrived at by His Lordship. While adopting those reasons and conclusion as mine, I also wish to chip in few comments in their support.

This is an appeal by the Prosecution against the decision of the Court of Appeal, Kaduna Division delivered on 3rd July, 2015 wherein the lower Court discharged and acquitted the Respondent on the two count charge of the offence of Armed Robbery and Culpable homicide punishable with death.

The facts leading to this appeal are that the Respondent, as the 4th Defendant in Charge No: KTH/4C/2013 was charged along with four others on a two count charge of the offence of Armed Robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, CAP R11 LFN 2004 and culpable homicide punishable with death under Section 221 of the Penal Code. The charge, dated 4th March 2013, reads thus: 1.

That you, (1) BABATUNDE ABUBAKAR ALIAS GIDIGO of Sabuwar Kofa Quarters Katsina, (2) SANI IDRIS ALIAS SHAMULOKE of Kofar Marusa Quarters, Katsina, (3) ABDULHADI SADIQ ALIAS BABA REZA of Marusa Quarters Katsina, (4) LAWAL ABUBAKAR ALIAS DAN LAWAL of Kofar Marusa Quarters Katsina, and (5) IDRIS UMAR ALIAS DAN IDI of Sabuwar Unguwa Koren Dorowa, Katsina.

On or about the 11th day of October, 2012 while in company of others now at large, while armed with sticks and matchetes, attacked, wounded and left unconscious, Sulaiman Abubakar and Usman Abubakar who are security guards at Mangul Plaza Yahaya Madaki Way, Kofar Kaura Katsina, when you boggled and entered the shop of one Alh.

Babangida Ali at the same address where you took away different types of GSM Handsets valued at about the sum of Three Million Naira (N3 Million) and the sum of Three Hundred and Fifty Two Thousand Naira (N352,000.00) and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act CAP R11 LFN 2004. 2.

That you, (1) BABATUNDE ABUBAKAR ALIAS GIDIGO of Sabuwar Kofa Quarters Katsina, (2) SANI IDRIS ALIAS SHAMULOKE of Kofar Marusa Quarters, Katsina, (3) ABDULHADI SADIQ ALIAS BABA REZA of Kofar Marusa Quarters Katsina, (4) LAWAL ABUBAKAR ALIAS DAN LAWAL of Kofar Marusa Quarters and (5) IDRIS CIMAR ALIAS DAN IDI of Sabuwar Unguvva Koren Dorowa, Katsina, on or about the 11th day of October, 2012 at Mangul Plaza Yahaya Madaki Way, Kofar Kaura Katsina, attacked and beat one USMAN ABUBAKAR with sticks and cut him with matchetes, which resulted to his death, with the knowledge that death would be the probable consequence of your act, and you thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code.

​They all pleaded not guilty to the charges and the matter proceeded to trial. The Prosecution in proof of its case called ten witnesses and tendered some exhibits. At the end of trial, the trial Court held that the Appellant proved its case against the accused persons and they were all sentenced to death by hanging.

Aggrieved by his conviction and sentence, the Respondent appealed to the lower Court. At that Court, it was found that the confessional statements were wrongly admitted for failure to test its voluntariness at a trial within trial. The lower Court therefore expunged the Exhibits A and A1 from the Record, set aside the judgment of the trial Court and the Respondent was discharged and acquitted.

It is against the judgment of the lower Court that the Appellant has lodged an appeal to this Court.

My learned brother has eruditely dealt with the issues submitted for determination, and the arguments of Counsel therein. I need not repeat them.

This Court has, in a multiplicity of cases, held a trial within the trial, is ordered and conducted, where the voluntariness of the making of the statement by an accused person, is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial, is conducted in order to determine whether the statement was voluntary or made by duress or otherwise.

When the trial Judge, is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court. See: Akpa v. State (2008) LPELR 368 (SC) State v. Sani (2018) LPELR 43598 (SC).

​My Lords, I think it is not out of place to restate the law on procedure of determining the voluntariness of confessional statement. Where in the course of criminal proceedings a confessional statement of an accused person is tendered in evidence by the prosecution and question is raised by the defence with regard to whether it was made or obtained voluntarily, the trial Court has a duty, and in fact MUST suspend the main trial and conduct a trial within trial to determine its voluntariness or otherwise.

At the end of the mini-trial, the trial Court must make up its mind in the light of the evidence adduced before it by both the prosecution and the defence, on whether such statement was voluntarily made by the accused or not. If its opinion, the statement in question was voluntarily made, it will admit it.

But if the trial Court finds that it was not voluntarily obtained, for instance there was slightest evidence of duress, force, promise, inducement or that trick was applied to the accused person, it will reject such statement and mark it so in its ruling and will proceed with the main trial, except that it will not act on it in its determination on the case.

But if on the other hand, the trial Court after conducting the trial within trial finds that the statement was voluntarily made by the accused, it will deliver its ruling admitting it and mark it so accordingly and then proceed with the main trial and it could later use or act on it in the determination of the case. See: COP v. Alozie (2017) LPELR 41983 (SC). I have carefully examined the record and note that when the extra-judicial statements were sought to be tendered, the Respondent’s objection was that they were made under duress and involuntarily made.

In that circumstances, the learned trial Judge is obliged to conduct a trial within trial to determine its voluntariness.

The consequence of the above is that the lower Court was on terra firm a when it expunged Exhibits A and A1 from the Record.

It is in view of these few comments and for the more detailed and elaborate reasons and the conclusion arrived at in the lead judgment of my learned brother, JOHN INYANG OKORO, JSC, that I also see no merit in this appeal It is hereby dismissed by me. Appeal is dismissed.

TIJJANI ABUBAKAR, J.S.C.: I had the privilege of reading in draft, the comprehensive leading judgment prepared and rendered in this appeal by my learned brother JOHN INYANG OKORO, JSC. I entirely agree that the appeal is frivolous and deserves to be dismissed. I also dismiss it and affirm the order of acquittal and discharge of the Respondent made by the lower Court.

Judgment

IBRAHIM MUHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016.

By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS It was on January 15, 2014 when the Appellant was arraigned before the trial High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery, to wit: COUNT 1 ARMED ROBBERY, Contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004. COUNT II ​ARMED ROBBERY: Contrary to and punishable under Section 1 (Special Provisions) Act, Cap R. 11 Vol. 14, Laws of the Federation of Nigeria, 2004.

Not unnaturally, the Appellant pleaded not guilty to both counts of the charge. The trial proceeded in earnest. At the conclusion of the said trial, the learned counsel addressed the Court, thereby resulting in adjourning the case for judgment.

On 30/4/2016, the trial Court delivered the vexed judgment to the conclusive effect: The concomitance of my conclusion is that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant is guilty as charged and therefore hold that the defendant, Abdurahim Usman is guilty of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special provisions) Act and for armed robbery contrary to Section 1(2) (a) of the same Robbery and Firearms (special provisions) Act.

He is therefore convicted as charged. See pages 36-50 of the Record of Appeal.

On 20/7/2016, the Appellant filed a notice of appeal, thereby challenging the conviction thereof by the trial Court. On 06/12/2016, the Court below delivered its judgment to the conclusive effect: I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on the 28th day of April, 2016. See pages .124-141 Record.

The Appellant’s notice of appeal, filed in the Court below on 18/12/2018, is predicated upon two grounds, thereby urging this Court to allow the appeal and in consequence thereof, grant the following two reliefs: (i) An order setting aside the judgment delivered by the lower Court on 6th December, 2018 and conviction of the Appellant. (ii) An order discharging and acquitting the Appellant of the offences of robbery and conspiracy to commit armed robbery. See pages 152 – 154 of the Record.

On February 24, when this appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in the respective briefs thereof, thereby warranting this Court to reserve Judgment to today.

The extant Appellant’s brief of argument was settled by OA Ojo Esq., on 10/7/2020, albeit deemed properly filed and served on 17/02/2021.

At pages 5 -6 of that brief, three issues have been couched for determination: (i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged (Ground 4 of Amended Notice of Appeal). (ii) whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds 1, 2, 3 and 5 of the Amended Notice of Appeal) (iii) Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).

The issue 1 is canvassed at pages 6-9 of the brief, to the effect that the reasoning of the trial Court at page 47 of the record regarding Exhibits C & D is wrong. That it’s of no moment that the Appellant denied making the statement, or that it is a fact to be resolved by the Court. See R. VS. IGWE (1960) 5 FSC.

It was submitted, that the Appellant was resolute that he did not make Exhibits C & D.

The Court is urged to resolve issue 1 in favour of the Appellant, as reliance on 1D 1 and 1D2(Exhibits C& D) by the two Courts below, was legally wrong.

The issue no. 2 was canvassed upon at pages 9-14 of the brief. In a nutshell, it is submitted that it was not the responsibility of the two Courts below to propound or offer any justification for the discrepancy in the testimonies of the witnesses, as demonstrated by the Court below at page 137 of the record. Secondly, that the reasoning and conclusion of the Court below was founded on extraneous consideration. See ELIAS VS. OMO-BARE (1982) 13 NSCC 92, et al.

The Court is urged to so hold, and resolve the issue no. 2 in favour of the Appellant.

The issue no. 3 is argued at pages 14-16 of the brief, to the effect that the circumstances of this case do not, in any way, justify a conviction for the offences of armed robbery, let alone conspiracy to commit armed robbery. Exhibits 1D1 and 1D2 were clearly inadmissible to convict the Appellant; there was no positive identification of the Appellant as the alleged offender. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the Appellant.

The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.

On the whole, the Court is urged to allow the appeal.

On the other hand, the Respondent’s brief was settled by Shehu Wada Abdullahi Esq. on 19/11/2020, albeit deemed properly filed on 17/02/2021. It spans a total of 14 pages. At page 4 thereof, a sole issue has been couched for determination: 3.1 Whether there is any exceptional reason to set aside the decision of the trial  Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant.

It is submitted in the main, that it is clearly shown on the records, that there are no good reasons for this Court to disturb the concurrent decision of the lower Court. See IDAM VS. FRN (2020) LPELR-49564 (SC) @ 10 paragraphs C-E, KURE VS. COP (2020) LPELR-49378(SC) @ 29-31 paragraphs F-A.

Further submitted, that other than Exhibits C and D, the quantum of the evidence before the trial Court was substantial to sustain the conviction of the Appellant. And that the prosecution through the PWI, PW2, PW3 and PW4 and Exhibits A and A1 established that the Appellant was the offender.

The Court is thus urged upon to hold, that the trial Court and the Court below were right to hold that the Appellant was guilty of conspiracy as charged.

Conclusively, the Court is urged to dismiss the appeal and affirm the concurrent decision of the Court below convicting and sentencing the Appellant.

Having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-avis the record of appeal, as a whole, I am appreciative of the fact that the Appellant’s three issues are very much germaine to the notice of appeal. I accordingly adopt them, mutatis mutandis, for the determination of the appeal, anon.

ISSUE NO. 1 The first issue, as copiously alluded, hereto above, raises the question of whether the Court below was right to ascribe probative value to Exhibits C and D, thereby affirming the Appellant’s conviction on the basis that both exhibits were confessional statements by which the Appellant admitted committing the offences as charged. The issue is distilled from ground 4 of the Amended Notice of Appeal.

As alluded heretofore, the Appellant’s grouse under issue I, in the main, is to effect that Exhibits C and D (Appellant’s confessional statements) were only tendered for identification purpose and marked as 1D1 and 1D2, respectively.

Indeed, the circumstances surrounding the tendering of the Appellant’s two confessional statements in question and the admission thereof as Exhibits E and D, are not far-fetched. It is obvious on the record, that the Appellant was arraigned before the trial Court on 15/01/2014. Consequent upon the plea of not guilty thereof, the trial commenced in earnest, without much ado. Two witnesses called by the prosecution testified as PW 1 (Fatima Yusuf) and PW 2 (Isiaka Jammiu).

Both witnesses were not cross-examined by the prosecution. ​ However, the third prosecution witness (PW3) Police, Corporal Amas Dunbaiji Nimighan (erroneously tagged “PW4”) did not have a ‘smooth sail’ like the PW 1 and PW2 who testified before him.

In the course of his examination-in-Chief, Corporal Nimighan testified that he was made the IPO in the case. He said he recorded what the Defendant (Appellant) told him. The Appellant signed and he too counter-signed that statement.

Consequent upon the identification of the Appellant’s statement in-question, the prosecution counsel, Mrs. Adeyemi Tuki, sought to tender it. However, the Defence counsel vehemently objected thus: Mr. Abdulkadir: We are objecting on the ground that the statement was not given voluntarily. The following scenario then registered itself: Court:- A trial-within-trial will be conducted. Mrs. Adeyemi- Tuki:- No. objection. Court:- The trial-within-trial is adjourned to 27th May, 2014.

However, from 16/4/2014 when the case was adjourned for trial-within-trial, it was only on 18/02/2016 that it came up for TWT. On the said date, the PW 1 (Amos Dunbaiju Nimighani, now a Police sergeant) testified but was not cross-examined by the Defence counsel, Bamisele Esq.

Contrariwise, the Appellant equally testified as DW1. However, in the course of his testimony, under the T W T, the Appellant (DW1) stated: PW1 and two other Police officers started to beat me. I was wounded. I was then taken to the statement room. PW 1 said I should sign a statement I asked him to read to me. He beat me. I asked him that I should be allowed to write my statement as I did at Owo. They refused. I later signed the document after the beating. The document shown to me was not the one I was forced to sign did not sign the document.

It was consequent upon the Appellant’s evidence under the TWT aforementioned, that the trial Court made a u-turn and thereby held: “Court – The stand taken by the defendant when he said the statement shown to him was not made by him and that he did not sign it makes the trial-within-trial untenable, although he claimed initially that he was forced to make the statement which necessitated the trial-within-trial. His change of mind which he has the right to do has made the trial-within-trial untenable. The question whether he made the statement and signed it is a question of fact.

This will be determined at the judgment stage. The document meanwhile should be marked 1D2. It will be marked as exhibit or rejected as the case may be, later while writing the judgment. The main trial will now resume.” See pages 14-16 of the Record.

The trial Court accordingly proceeded with the trial, and at the conclusion of which delivered the vexed judgment on the 28/4/2016 in-question. Most specifically, at page 47 of the Record the trial Court held, inter alia: “PW3 said that he took the statement of the defendant which he signed and PW3 then counter-signed. The statement was tendered as an exhibit. The defendant objected on the ground that he did not make any statement to the defendant (sic). I then said that the document should be marked 1DI and that I will determine at the judgment stage whether he made the statement or not.

I think I should have admitted the document straight because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R. V. IGWE (1960) 5 ESC. 55; THE STATE V. SALAWU (2011) 8NWLR (pt. 1279) 580 @ 625 B-D. In view of this, the document is to be marked Exhibit C. The same scenario played out when the statement of the defendant which PW4 claimed to have recorded from him was tendered.

He claimed not to have signed the document which was brought to Court. … I should have straight away marked the document as an exhibit in the circumstances but unfortunately I said it should be marked ID2. The document marked ID2 should be marked Exhibit D.” ​ On its part, the Court below in the judgment thereof (pages 124-150, especially @ 144 of the printed record) held: “When Exhibits C&D were being sought to be tendered, the appellant only said he did not make it He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc.

Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact the appellant retracted his confessional, statement. A confessional statement does not become inadmissible because the accused retracted the confession on Oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See DIBIE VS.

STATE (2007) 9 NWLR (pt. 1038, 30.” ​ The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.

In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellant.

ISSUE NO. 2 The second issue raises the question of whether or not the Court below was right to regard the discrepancy in the date of the alleged commission of the offences, and that of the Appellant’s arrest as a mere mistake. The second issue is distilled from grounds 1,2,3 and 5 of the Amended Notice of Appeal.

At page 46 of the record, the trial Court made some findings, thereby alluding to the discrepancy in the date the offences were allegedly committed and on which the Appellant was supposedly arrested. Allegedly, the trial Court dismissed the discrepancy as mere mistake. According to the trial Court: There is no doubt that the discrepancy is nothing but a mistake and should not affect the case of the prosecution in any significant way. PW1, PW2 and PW3 all talked about one robbery in which the defendant was a participant.

It is not possible for the defendant to be in the Police station at 3am of 18th June, 2013 when PW1 and PW3 had not caught him and when he was not caught until I am on the 19th June, 2013.

On the part thereof, the Court below made a finding on the issue of the discrepancy in question at page 137 of the record: “I am unable to see any contradiction in the evidences of PW1 and PW2 as to the date or in any other particular… If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.3am on the 19th of June. This is English culture that any past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th.

Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight… I do not agree with the appellant’s learned counsel that it was wrong for the trial judge to explain this minor discrepancy in the way he did, that perhaps PW3 made a mistake.

This is especially is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the trial judge.” ​ In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested.

Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed.

The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus: “I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son.

He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).”

In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime: “As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back.

I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.”

Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say: “I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.” See pages 8-9 of the Record.

The PW2 under Oath equally testified narrating his direct encounter with the Appellant, thereby corroborating the evidence of the PW 1 regarding the date of the commission of the armed robbery and the resultant apprehension of the Appellant at the scene of the crime. According to the PW 2: “I know the defendant. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken. I look up and I saw three men with me. They said they will kill me, the defendant pointed gun at me.”

The PW3 also testified corroborating the evidence of both the PW1 and PW2 regarding the Appellant’s arrest at the scene of crime on 19th June, 2013.

The Court below in the vexed judgment resolved the alleged discrepancy regarding the date on which the armed robbery was commissioned, and when the Appellant was apprehended at the scene of crime on 1-9/6/2013, in favour of the prosecution.

I am unable to appreciate, let alone uphold the Appellant’s preposterous submission, to the effect that the inconsistencies and discrepancies highlighted cast doubt in the prosecution’s case, that the Appellant was the one arrested at the scene of crime on 19/6/2013 and time (1.30am) in-question.

In the circumstances, the second issue is hereby resolved against the Appellant.

ISSUE NO. 3 The third issue raises the question of whether there was any justification upon which the Court below could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery.

In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that: “The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy.

They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.”

On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus: “I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V.

STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.”

I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.

In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellant. ​ My Lords, it’s indeed settled, that if a Court came to a decision which no reasonable Court or tribunal applying its mind to proper considerations and giving itself proper directions can come, then an appeal Court having jurisdictional competence to entertain an appeal from such a decision only on a point of law, would reverse such a decision.

The reason being that, the position is exactly the same as if the Court had to come to a decision of fact that no evidence whatsoever supports, which must be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980) LPELR-2936 (SC) per Idigbe, JSC @ 57 paragraphs A-E. In the case of BRACEGIRDLE VS. OXLEY (1947) 1 ALLER 126 (a decision of the Court of 5 justices, cited with approval by this in NAFIU RABIU VS.

KANO STATE, supra), it was aptly held: “In this Court, we only sit to review the justices’ decision on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”

Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me.

The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JSC and to register the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal is against the decision of the Court of Appeal, Akure Division or Court below or lower Court, Coram: Mohammed A. Danjuma, Ridwan M. Abdullahi and Patricia Ajuma Mahmoud JJCA The judgment which was delivered on 6th December, 2018, affirmed the appellant’s conviction by the High Court of Ondo State, per Kolawole J in a decision made on 28th April, 2016.

BACKGROUND FACTS The appellant was arraigned on a two count charge of armed robbery and conspiracy to commit armed robbery as follows: COUNT 1 STATEMENT OF OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to, and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, vol.14, Laws of the Federation of Nigeria 2004. PARTICULARS OF OFFENCE Abdulrahim Usman (M) and others still a large, on the 19th day of June, 2013 at about 01;30 am Division, did conspire with others at large to commit felony to wit: Armed Robbery.

COUNT II STATEMENT OF OFFENCE ARMED ROBBERY: Contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.II, Vol. 14, Laws of the Federation of Nigerian PARTICULARS OF OFFENCE Abdufrahim Usman (M) and others still at large, on the 19th day of June, 2013 at Owo in the Akure Judicial Division, while armed with guns and other dangerous weapons broke into the house of one Fatima Yusuf (F) and robbed her of money (N60,000.00) and other valuables.

The prosecution called four witnesses while the Appellant testified in his own defence. Exhibits A and A1 are the locally made riffles used in commission of the offence. Exhibit B are specimen signatures obtained from the appellant during trial, when the appellant denied making the two statements admitted for identification purpose as ID1 and ID2. Both statements were said to be the Appellant’s confessional statements.

The prosecution’s case was that the appellant was one of three armed robbers that attacked PW1 and PW2 at gunpoint on 19th June, 2013 at about 1 a.m. The other two are said to be at large. PW3 and PW4 were the policemen that investigated the crime and obtained statements from the appellant. Neither of these witnesses arrested the appellant. One Supol Suleinnan, who was not called to testify, was said to have arrested at the appellant police station in Owo.

PW3 testified that he was summoned to the Owo Police Station in the early hours of 18th June, 2013 and that it was then that he met and took the appellant’s first statement (admitted as ID1).

The case was later transferred to the Special Anti-robbery Squad (SARS) in Akure for investigation. PW4 stated that he obtained a second statement (admitted as ID2) from the Appellant upon transfer of the case file to SARS, Both PW3 and PW4 stated that ID1 and ID2 are voluntary confessions by the appellant. ​ The appellant denied complicity in either of the offences charged. He testified that as of 15th June, 2019, he was already in police custody on account of an unrelated matter for which he asserted he was being detained. He denied making both statements credited to him.

He initially challenged the voluntariness of ID2. That then resulted in a trial-within-trial, during which he denied making the statement. The trial judge then terminated the trial-within-trial.

Both sides closed their respective cases and addressed the trial judge which convicted the appellant as charged and sentenced him to death.

On the 24/2/2022, date of hearing, learned counsel for the appellant, Oluwaseyilayo Ojo adopted the brief of argument filed on 10/7/2020 and deemed filed on 17/2/2021.

He distilled three issues for determination, viz: (i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the appellant’s conviction on the basis that both were confessional statements, by which the appellant arrest as a mere mistake, (Grounds 4 of the Amended Notice of Appeal) (ii) Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds and 5 of the Amended Notice of Appeal), (iii) Whether there was any justification upon which the lower Court could infer that the appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the respondent, Shehu Wada Abdullahi Esq., adopted the brief of argument filed on 19/11/2020 and deemed filed on 17/2/2021. He formulated a single issue as follows:- Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the appellant?

The sole issue of the respondent covers all questions regarding the determination of the appeal and I shall use it.

SOLE ISSUE Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on the conviction and sentencing of the appellant.

Learned counsel for the appellant contended that the trial Court and the Court below were wrong to have held that it was of no moment that the appellant denied making the statement and so the trial Court relying on that statement to make its decision was faulty. That R. V Igwe (1960) 5 FSC 55 and The State v Salawu (2011) 8 NWLR (pt.12 79) 580 were misapplied. ​ That there were discrepancies in the evidence of prosecution witnesses which should vitiate the conviction which conviction was based on a conjecture. He cited Elias v Omo-Bare (1982) 13 NSCC 92.

Learned counsel for the appellant submitted that the offences of armed robbery and conspiracy to commit armed robbery remained not proven. He cited Osetola v State (2012) 17 NWLR (pt.1329) 251 etc.

That the circumstances of this case justify this Court’s interference with the concurrent findings and a reversal of the same. He relied on Audu v State (2016) 1 NWLR (pt. 1494) 557 etc.

Learned counsel for the respondent contended that there is no good reason for this Court to interfere with the concurrent findings of fact of the two Courts below. He cited Idam v FRN (2020) LPELR-49564 (SC) at 10 etc.

That the prosecution established the offences beyond reasonable doubt and the PW1 and PW2 – the witnesses identified the appellant as one of those who committed the offence.

It was submitted for the respondent that the confessional statements of the appellant, Exhibits C and D were properly admitted. See IBEME V. STATE (2013) 10 NWLR (PT.1362) 333 where it was held that: “where there is an outright denial of the statement sought to be tendered by the prosecution, it amounts to retraction of the statement and such a statement is otherwise admissible and reliable without the necessity of conducting a trial as its voluntariness is not in issue.”

The point has to be made that if the appellant’s objection at the first instance is on the ground that he did not make the statement, Exhibits C and D would have outrightly been admitted. The trial Court rightly found at page 47 lines 12-17 of the record when he held that: “The defendant objected on the ground that he did not make any statement to the defendant (sic-PW3), I then said that the document should be marked ID1 and that I will determine at judgment stage whether he made the statement or not.

I think I should have admitted the document straightaway because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R v. IGWE (1960) 5 F.S.C 55, THE STATE V. SALAWU (2011) 8 NWLR (Pt. 1279) 580 at 625 B-D. In view of this, the document is to be marked Exhibit C.”

The Court below of course saw no reason in the circumstance why Exhibits C and D should not have been admitted as evidence and so Ridwan Abdullahi JCA in the appellate Court’s judgment stated as follows: “In the instant case, the appellant only said he did not make Exhibit C and D when they were sought to be tendered. Therefore, the mini trial conducted by the learned trial judge is a surplus.”

Significantly other than the confessional statements of the appellant (Exhibits C and D), the quantum of evidence before the trial Court is substantial to sustain the conviction of the appellant. The ingredients of the offence were proved beyond reasonable doubt by the prosecution. Also, the prosecution through PW1 and PW2- who were eye witnesses identified the appellant as one of those who committed the offence. PW3 and PW4 also established that the appellant was the offender and tendered Exhibits A and A1 (Gun and four live cartriges) which were recovered from the appellant.

The appellant did not object to the admissibility of Exhibits A and A1.

Patricia Mahmoud, JCA with clarity stated in the lead judgment when he held at page 146 of the printed record that: “Even if, like urged by the learned counsel to the appellant, I expunge Exhibits C and D, the confessional statements of the appellant (which has not been justified), there is ample credible evidence left to sustain his conviction. I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on 2Sh day of April, 2016.”

For certain, the trial Court was right to admit the confessional statement of the appellant as Exhibits C and D and the Court below correct to go along with that well founded position.

On the other grouse of the appellant over whether the discrepancy on the date of the commission of the offence and the date of arrest was a mistake and therefore fatal to the case of the prosecution. I shall answer that poser by taking a few steps back into the facts leading to where we are now. ​ The appellant was arrested at the scene of the crime. PW1 and PW2 were victims and were at the scene of the crime and they successfully identified the appellant as the apprehended culprit, were unshaken about the date of offence and the date of arrest.

In her testimony, PW1 stated that: “I remember 19th June, 2013, I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down! Lie down!. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour when I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son.”

While establishing that the defendant was arrested after the robbery on the same date, PW1 equally stated in lines 8-9 at page 9 of the record that: “the defendant was bound with rope and the police was called The police later came and he was taken to the police station at Ijebu-Owo.”

PW2 who had a direct encounter with the appellant corroborated the date of commission of the offence and arrest of the appellant stated that: “I know the defendant I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken, I woke up and I saw three men with me.

They said they will kill me, the defendant pointed a gun at me.” PW3 also established the date of the appellant’s arrest in his testimony contained at page 11 of the record when he stated that: “I was in my office on 19th June, 2013 when the case of armed robbery was transferred from ‘A’ division, Owo to our office.”

Of note is that the information/Charge (contained at page 2 of the record) was not at variance with the date of commission of the offence and arrest as stated by PW1 and PW2 who were victims and eye witnesses. It reads thus: “Abdulrahim Usman (M) and others still at large, on the 19th day of June, 2013, at Owo in the Akure Judicial Division…”

It is evidently clear that the date of arrest stated by PW3 is a mere mistake which is not detrimental to the prosecution’s case as PW3 is not an eye witness to the commission of the crime by the appellant or his arrest. See ASUQUO V STATE (2016) LPELR-40597.

There is no wonder that the lower Court examining the importance of PW3″s testimony and resolved that the discrepancy was minor and insignificant and found in favour of the respondent. The Court below per Mahmud JCA rightly held thus: “I am unable to see any contradiction in the evidence of PW1 and PW2 as to the date or in any other particular. They were the victims of the said robbery. If there was a major discrepancy in the evidence of the two, it might have been an issue. But there was none. PW3 was not an eye witness.

He was called by his superior to attend to the appellant who had been arrested and taken to the police station on allegation of robbery. If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.30am on the 19th June. This is English culture that anything past 12 midnight is the next day. In most African cultures that would stiff be explained as the night of the 18th. Therefore 3.00am of 18th is actually the same thing as the early hours of 19th since it is past midnight.

The only difference here is that perhaps PW3 belongs to the African culture, so that until the day breaks, it is stiff the day before. I do not agree with the appellant’s counsel that it was wrong for the trial judge to explain this minor discrepancy in the time the way he did, that perhaps PW3 made a mistake. This is especially so as the discrepancy is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the judge.”

There is no faulting the two Courts below on the stand on the discrepancy as to the date of the commission of the offence and arrest of the appellant was a genuine mistake by the PW3.

On whether appellant was complicit and liable for the offences of armed robbery, I would not hesitate in reiterating that the offence of conspiracy is embedded in the agreement or plot between the parties. It is normally deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy. I place reliance on the cases of Njovens & Ors v State (1993) 5 SC 17; State v Gbahabo & Ors (2019) LPELR-48 117 (SC).

In line with the guides on how the offence of conspiracy is said to have been established, in this instance, the testimonies of PW1 and PW2 who are victims and eye witnesses were direct and unequivocal that the appellant in company of two other persons robbed them on the said date of 19th June, 2013. It was from what was before him that the learned trial judge found that there must have been an agreement by the appellant and the others to act the way they did by going to the house of PW1 in the early hours of the day of incident and robbed PW1.

He stated further that the agreement was conspiratory and since the appellant was part of it, he was guilty of the conspiracy as charged.

The appellate Court had no difficulty in affirming what the trial Court did when the Court below held as follows: “I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy.

I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the police patrol team which was summoned arrived and took him away is such a quality that without doubt in the words of Achike JSC as quoted by Kekere-Ekun, JSC in the case of Yakubu V STATE (2014)8 NWLR PT 1408, 111: “irresistibly compels the Court to make an inference as to the guilt of the accused.”

The appellant is expected to show exceptional reasons why this Court should interfere with the concurrent decision of the trial Court and the lower Court of Appeal. See UGBOJI V. STATE (2017) LPELR-43427 (SC); this, the appellant has failed to do. The prosecution successfully proved the ingredients of the offences of armed robber and conspiracy to commit armed robbery. PW1 and PW2 undoubtedly and positively identified the appellant as the alleged offender.

In conclusion and from the foregoing, the appellant certainly has no fighting chance to sway the hand of the Court in his favour as the appeal lacks merit.

I too dismiss the appeal and abide by the consequential orders made. Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft, the judgment of my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed.

The appellant has made heavy weather of the fact that the learned trial Judge erred in relying on his extra-judicial statements, Exhibits C and D, in convicting him. It was argued that the statements were merely admitted for identification purposes during the trial-within-trial and marked ID1 and ID2 respectively. As elaborately explained in the lead judgment, at the time the statements were sought to be admitted in evidence, there was an initial objection on the ground that the statements were not made voluntarily but were the product of torture.

It was on this basis that a TWT was held to ascertain whether the allegation of involuntariness was true.

However, during his testimony, the appellant made an about-face and stated that the statements sought to be tendered were not the statements he was forced to make. He completely denied any knowledge of the statements. At that stage, the learned trial Judge held that having denied making the statements at all, a TWT was not the appropriate procedure to adopt. The statements were marked ID1 and ID2 and His Lordship terminated the TWT and stated that the decision as to whether the statements were made by the appellant or not would be deferred to the judgment stage.

Where an accused person denies making the statement sought to be tendered, the proper procedure the Court should adopt is to admit the statements as exhibits and determine their evidential value at the judgment stage after all the evidence would have been before the Court. The determination of whether the accused did in fact make the statement is an issue of fact to be established after consideration of all the surrounding circumstances.

See Abu Mohammed vs The State (2020) LPELR – 52451 (SC) @ 14 – 16 F- F, Dairo vs The State (2017) 9- 12 SC 119; (2017) LPELR – 43724 (SC) @ 13 – 14 D-A and Owie vs State (1985) NWLR (Pt. 3) 470.

As rightly observed by the learned trial Judge, he ought to have admitted the statements in evidence once the appellant changed his tune and denied making them. However, the law is trite that it is not every mistake made by a Judge that would result in a reversal of the decision, unless the party complaining can show that there has been a miscarriage of justice or that if the error had not occurred the judgment would have been in his favour. See Kraus Thompson Org. Ltd.

Vs University of Calabar (2004) 4 SC (Pt. 1) 65; (2004) LPELR- 1715(SC) @ 18 – 19 A – F, Garuba vs Omokhodion (2011) LPELR – 1309 (SC) @ 55 B – C, Faleye vs Dada (2016) LPELR – 40297 (SC) @ 27 C- E.

In the instant case, there was credible, unchallenged evidence of PW1 and PW2, affirmed by PW3, that the appellant was actually arrested at the scene of crime with a firearm and 4 cartridges and handed over to the Police. PW1 and PW2 were the victims of the crime. The trial Court found them to be credible witnesses. The Court below was not persuaded to hold otherwise.

It was PW1’s quick thinking in seizing the appellant from behind when he was pointing his gun in the direction of neighbours who were approaching the scene to rescue them, that led to his arrest, as she held onto him until help came.

Clearly, the argument of learned counsel for the appellant regarding alleged discrepancies as to the time of the commission of the offence in the evidence of PW1 and PW2 on the one hand and PW3 on the other, could not put a dent in the solid case put forward by the prosecution.

The concurrent findings of the two lower Courts are well situated on the cogent and credible evidence on record.

The appellant has not advanced any special circumstances to warrant interference by this Court.

​The appeal lacks merit and is hereby dismissed. The judgment of the lower Court is affirmed.

ABDU ABOKI, J.S.C.: I have had the benefit of reading in draft, the lead judgment written by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. His Lordship had thoroughly and painstakingly dealt with all the issues canvassed by the learned counsel to the parties, and I adopt them as mine, I shall make some few comments by way of emphasis.

By an information dated 11th November, 2013, the Appellant was charged and arraigned at the trial High Court of Ondo State, on a two count charge of conspiracy and armed robbery, contrary to and punishable under Section 6(b) and 1(2) (a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap RI 1, Vol. 14, Laws of the Federation of Nigeria, 2004.

​The Prosecution’s case was that the Appellant Abdurahim Usman, along with two others still at large robbed one Fatima Yusuf (F) at her house in Owo, in Akure Judicial Division of the sum of Sixty Thousand Naira (N60, 000.00) and other valuables.

In proof of its case, the Prosecution called three witnesses and tendered five exhibits. The Appellant in his defence testified for himself and called no other witness.

At the conclusion of trial, the learned trial judge found the Appellant guilty as charged and sentenced him to death by hanging.

Dissatisfied with this judgment, the Appellant appealed to the Court below. The Court below dismissed the appeal and affirmed the decision of the trial Court.

Still aggrieved, the Appellant lodged an appeal at the Registry of this Court. The amended Notice of Appeal, deemed filed on the 17th February, 2021, contains six grounds of appeal.

Learned Counsel for the Appellant distilled three issues for determination. They are: 1. Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction, on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged? 2. Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences; and that of the Appellant’s arrest, as a mere mistake? 3.

Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery?

The Respondent raised a sole issue for determination that is: “Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on appeal, on the conviction and sentencing of the Appellant?”

I adopt the Respondent’s sole issue, in lending credence to the well-articulated lead judgment of my learned brother, SAULAWA, JSC.

Learned counsel for the Appellant has argued amongst others, that the Prosecution has failed to prove the ingredients of the offences charged, and that the learned trial Judge was wrong to have relied on the retracted Appellant’s confessional statement, Exhibits C. Understandably, the Respondent argued otherwise.

PW1 and PW2, the victims of the robbery incident, gave very vivid account of the robbery as eye witnesses and how they caught and held the Appellant down at the scene of the crime until the police came and took him away. The evidence of PW1 and PW2 coupled with the Anpellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant.

The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. Where an accused person objects to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. See: Dibia v. State (2017) LPELR 48453 SC.

In the instant case, PW1 and PW2 who are the victims of the robbery incident, gave very vivid account of the robbery. The evidence of PW1 and PW2 coupled with the Appellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant. Conviction can stand if the Prosecution is able to establish the ingredients of the offence, even on the evidence of a single witness. See: Lase v. State (2017) LPELR 42468 SC.

The Court below, echoed these sentiments, when in its judgment, it stated thus: “The testimonies of PW1 and PW2 are very strong, positive and direct. They were not only the victims of the robbery but they saw the appellant, grabbed him and held him down until help came and he was taken away. The evidence of PW1 is that the Appellant along with two others broke into her house and were holding a local gun, Exhibit D over her son who was sleeping in the ‘parlour’. She was in her room next door sleeping when she heard the commotion and came out to the ‘parlour’ and was confronted with that scene.

Fearing for her son’s life, she offered to give them money. Two of the gang members (still at large) followed her to the room where they robbed her of a total sum of N60,000. At that point, the neighbors sensing what was happening started shouting ‘thief, thief’ to draw attention of those who might aid them. Throughout the operation with the two gang members in the room, the appellant was holding a gun over PW2’s head in the ‘parlour’.

The evidence was that the two went out to shut up the neighbor who was trying to attract attention to them and bolted away when they realized the situation was dangerous. Before the appellant could leave, PW1 grabbed him from the back. Assisted by PW2 they held down the appellant until the neighbours called for help and the patrol team went and took him to the Police station. PW1’s evidence was never shaken under cross-examination. Clearly, she is a witness of truth. In cross-examination, she said she did not know the appellant before the date of the robbery.

In further cross-examination, she said the other two accomplices of the appellant wore face mask but the appellant had one together with the local gun and four ammunitions and hand gloves but was not wearing it at the time of their encounter with him. While she admitted that she could not identify the two accomplices who were masked, the identity of the appellant vis-a-vis PW1 was never in doubt.

Indeed, as has been held in a plethora of cases, the testimony of PW1 alone having proved all the essential elements of the offence of armed robbery, is sufficient to prove the offence beyond reasonable doubt. It is direct, positive, cogent and reliable. I found earlier that the testimony of PW1 was not in any way shaken in cross-examination. It is important that even though it could have relied on the evidence of PW1 alone to secure a conviction, the prosecution still called PW2. … the evidence of Pw2 corroborated the testimony of PW1 in every material particular.

There was robbery involving three persons. The appellant was one of them. He was armed with a gun and was captured in the house with a gun and four ammunitions. They robbed PW1 of N60,000.00. I am satisfied from the evidence of PW1 and PW2 which remained largely uncontroverted, that the prosecution proved its case beyond reasonable doubt…”

I agree with the Court below that in the circumstances of the instant case, even without the confession, it is clear that the evidence of the Prosecution Witnesses. i.e. PW1 and PW2 was unassailable and enough to ground the Appellant’s conviction and sentence.

It is for these and the more detailed reasons advanced in the lead judgment prepared by my learned brother, IBRAHIM M. M. SAULAWA, JSC, that I also dismiss this appeal.

I equally abide by any consequential order contained therein. Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, SAULAWA, JSC granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal.

I entirely agree and endorse the sound reasoning and conclusion, I adopt the entire judgment as mine, I have nothing extra to add.

​Appeal dismissed.

Judgment

EMMANUEL AKOMAYE AGIM, J.S.C.: (Delivering the Leading Judgment): This appeal No. SC.934/2016 was commenced on 8/8/2016 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 24/6/2016 in CA/KA/148CA/2013, affirming the judgment of the High Court of Ondo State at Akure delivered on 16/5/2013 in criminal case No. AK/24C/2012 convicting and sentencing the appellant to death for conspiracy to commit armed robbery and armed robbery. The notice of this appeal contains 2 grounds for this appeal.

Both sides have filed, exchange and adopted their respective briefs as follows – appellant’s brief and respondent’s brief. The appellant’s brief raised the following issues for determination. ​1.

Whether the judgment and decision of the Court of Appeal which unjustifiably failed and refused to consider and pronounce on the issue/defence of irregular use of confessional statement of co-accused to convict the appellant does not amount to a denial of the right to fair hearing of the appellant and thus rendering the judgment of the Court of Appeal arrived at such circumstances liable to be set aside (Ground 1) 2.

Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution. (Ground 2).

The respondent’s belief raised two issues for determination as follows- 1. Whether in the circumstances of this case and having regards to the evidence led before the trial Court, the Court of Appeal can be said to have dispassionately considered the appellant’s case before affirming his conviction for conspiracy and armed robbery. 2. Whether, in view of the evidence led before the trial Court, the Court of Appeal was right in upholding the conviction of the appellant for conspiracy and armed robbery.

I will determine this appeal on the basis of the issues raised in the appellant’s brief. Let me start with issue No. 1 I have carefully read and considered the arguments in the respective briefs on this issue.

​Learned counsel for the appellant has strenuously argued that the appellant had in the Court of Appeal argued in his brief that it was wrong for the trial Court to rely on the confessional statement of the co-accused to convict the appellant and that the Court of Appeal failed to consider and determine the issue raised by that argument. But learned counsel for the appellant did not reproduce or refer to the part of the appellant’s brief in the Court of Appeal containing such argument. Without drawing our attention to such argument, we can reasonably presume that such argument was never made.

Learned counsel cannot just make such assertion without more and expect this Court to make his case for him by burrowing into the records to find out if he made such argument, and if it finds out that he did, use it to strengthen his argument and then decide the point, We would not want to step down into the arena in this way, in the face of two concurring decisions of Courts against him.

As it is, the said argument of learned counsel for the appellant lacks merit and is hereby dismissed. ​ The records of this appeal show that the appellant herein was jointly charged and tried with Tayo Ikujuni for conspiracy to commit armed robbery and armed robbery. The appellant was the 2nd accused. Tayo Ikujuni was the 1st accused. The second confessional statement of 1st accused made on 30/7/2011 was admitted through PW3 as exhibit P14. His first confessional statement made on 27/7/2011 was admitted through PW7 as Exhibit P16.

The appellant (2nd accused) equally made two confessional statements, exhibits P15 and P16A.

The trial Court in its judgment reviewed in detail the testimonies of all the prosecution witnesses, the confessional statements of each accused, the evidence of the incriminating materials recovered from the appellant and the evidence of each accused in defence, before making findings of material facts on the basis of the totality of the evidence before it. It did not rely on the confessional statements of the 1st accused to convict the appellant (2nd accused).

It relied on the confessional statements of the appellant, which it fully reproduced verbatim in the judgment, the testimonies of PW1 to PW8 and the evidence of the appellant in defence as DW2 in convicting him. ​ The argument of learned counsel for the appellant that the trial Court relied on the confessional statements of the appellant’s co-accused to convict the appellant is not supported by the terms of the judgment of the trial Court.

The appellant did not refer to or reproduce the part of the trial Court’s judgment that relied on the confessional statements of his co-accused to convict him. The argument is therefore not valid for consideration. It is incompetent. Arguments in an appeal must be based on what is contained in the record of the appeal. Allegations of events not contained in the record are not valid for consideration. Arguments on the basis of facts not contained in the record of appeal are incompetent. See Akpan v. The State (1987) 5 SCNJ 112; (1992) 6 NWLR (Pt. 248) 439.

For the above reasons, I resolve issue No. 1 in favour of the respondent.

​Let me now determine issue No. 2 which asks: Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution (Ground 2).

The testimonies of PW1 to PW8 and exhibits P14 and P16, the extra-judicial confessional statements establish beyond reasonable doubt that the appellant and other persons conspired to commit armed robbery, that PW1, PW2 and PW4 were robbed in their houses on 27/7/2011, by the appellant and his gang of armed robbers, an armed robbery and the appellant participated in the armed robbery.

In the light of the foregoing, I hold that this appeal fails as it lacks merit. It is accordingly dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Agim, JSC, and I agree with him that this appeal completely lacks merit.

The issue in this appeal boils down to credibility of Witnesses, and “credibility” is the quality of being convincing or believable. Thus, since the trial Court has the liberty and privilege to believe one witness or disbelieve another, its findings based thereon, is almost sacrosanct, as its belief or disbelief can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – Adelumola v. State (1988) 1 NWLR (Pt. 73) 683.

Besides, there is a rebuttable presumption that its findings of fact are correct, and the duty of this Court to interfere would only come into play where the trial Court failed to properly examine and evaluate the evidence before the Court. In this case, the Court of Appeal affirmed the trial Court’s findings predicated on the credibility of the witnesses. It believed the witnesses called by the prosecution and disbelieved the appellant.

The appellant has not provided this Court with any reason to question the concurrent findings of the trial Court and Court of Appeal that touches on credibility.

What is more, the law says that where there is sufficient evidence to support the concurrent findings of the two lower Courts, they will not be disturbed unless there is significant error apparent on the record; that is, the findings are shown to be perverse, or some miscarriage of justice or some violation of the principles of law or procedure is shown thereon – see Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 SC. ​In this case, there is more than enough evidence established by the prosecution to support concurrent findings of fact by the trial Court and Court of Appeal.

In the circumstances, this Court cannot intervene.

It is for this and the other eloquent reasons in the lead judgment, which I adopt as mine in its entirety, that I also dismiss this appeal.

UWANI MUSA ABBA AJI, J.S.C.: I was privileged to read in advance the draft judgment of my learned brother, Emmanuel Agim, JSC, just delivered, and I agree with his reasoning and conclusion that this appeal be dismissed.

The appellant herein was the 2nd accused person and charged with conspiracy to commit armed robbery and armed robbery.

Thus, this appeal is connected with SC/933/2016. The confessional statements of the appellant contained in exhibits P14 and P16 (a), the testimonies of PW1-PW8, have linked the appellant to the robbery of 27/7/2011.

Worthy of note is that this appeal is an offshoot of the concurrent findings of fact of both the trial and lower Courts. This Court is always careful to interfere with such decisions except there is clear case of perversion or miscarriage of justice. The fate of the appellant is unfortunately sealed as the facts are against him. I therefore agree with the conclusion of my learned brother that this appeal grossly lacks merit and ought to be dismissed. It is hereby dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The appellant along with several other persons on 27th July 2011 between 12:30am and 1:30am invaded houses in Ondo town including the houses of PW1 and PW4. They had successfully broken into the houses of the PW1 and PW4 and made away with several items before the police arrived and there was exchange of gun fire between the police and the armed robbers. The appellant was arrested on the account of the 1st accused person who had mentioned him as belonging to the gang that carried out the robbery operation.

The 1st accused person not only mentioned the appellant to the police but led them to the appellant’s house where the appellant was arrested. ​ On the 19th day of November, 2012 the appellant alongside one other accused were arraigned in the High Court of Ondo State, Akure Division on an information containing one count of conspiracy to commit armed robbery and two counts of armed robbery. The appellant during the trial pleaded not guilty to all the counts. The prosecution called 8 witnesses while the appellant testified on his own behalf.

The trial judge in his judgment convicted and sentenced the appellant to death by hanging.

Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal, Akure Division via notice of appeal. The lower Court in its judgment delivered on the 24th day of June 2017 dismissed the appellants appeal and upheld the conviction and sentence of the appellant. ​ Dissatisfied with the judgment of the lower Court, the appellant consequently filed a notice of appeal on the 8th of August 2016 containing two grounds. The following two issues were distilled for determination in the appellants brief of argument. To writ:- 1.

Whether the judgment and decision of the Court of Appeal which unjustifiably failed and refused to consider and pronounce on the issue/defence of irregular use of confessional statement of co accused to convict the appellant does not amount to a denial of the right to fair hearing of the appellant and thus rendering the judgment of the Court of Appeal arrived at such circumstance liable to be set aside (Ground 1). 2.

Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved reasonable doubt by the prosecution (Ground 2).

In the respondents brief of argument the following two issues were formulated:- 1. Whether in the circumstances of this case and having regards to the evidence led before the trial Court, the Court of Appeal can be said to have dispassionately considered the appellant’s case before affirming his conviction for conspiracy and armed robbery. 2. Whether in view of the evidence led before the trial Court, the Court of Appeal was right in upholding the conviction of the appellant for conspiracy and armed robbery.

I have carefully perused the submissions as contained in the parties’ briefs of argument. ​ The submissions of the respondents in their brief of argument is basically a summary of the evidence adduced at the trial Court, the real issue raised in this appeal by the appellant is that the lower Court’s decision was hinged on the 1st accused confessional statement in dismissing the appeal.

A careful perusal of the judgement of the lower Court shows that the lower Court carefully examined the evidence adduced at the trial Court and rarely relied on the confessional statement of the appellant himself let alone that of the 1st accused. The lower Court decision is predicated on 3 main evidential points. 1. The evidence of PW5 (police) stating that the 1st accused led the police to the House of the appellant because he was one of the robbers. 2.

The appellant did not raise the issue of involuntariness of the confessional statement when they were tendered but instead raised it during his defence at the dock. 3. The appellant during the trial stated he had no gun on him and did not enter any of the houses broken into but merely kept watch. ​ In summary, these pieces of evidence relied on by the lower Court in affirming the decision of the trial Court are basically fool proof as they were not rebutted by the appellant.

The lower Court did not rely on the confessional statement of the accused to convict the appellant but rather relied on the incriminating evidence of a co-accused. For emphasis and clarity I will cite the case of Mohammed Usman v. The State (2019) LPELR- 47396(SC) (2019) 15 NWLR (Pt. 1696) 411 where this Court held inter alia that:- “The position of the law is that the statement of a co-accused person to the police is binding on him only – See Suberu v. State (2010) 8 NWLR (Pt. 1197) 586.

However, where the evidence incriminating an accused person comes from a co-accused person, the Court is at liberty to rely on it as long as the co-accused person, who gave such incriminating evidence, was tried along with that accused person – See Dairo v. The State (2017) LPELR-43724(SC); (2018) 7 NWLR (Pt. 1619) 399 and Michael v. State (2008) 13 NWLR (Pt. 1104) 361.”

For this and the more detailed reasons given in the leading judgment of my learned brother E. A. Agim, JSC. I also hold this appeal lacks merit and deserves an order of dismissal. Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: My learned brother Emmanuel Akomaye Agim, JSC, granted me the privilege of having a preview of the comprehensive leading judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field, I have nothing more to add, the reasoning and conclusion in the leading judgment are in accord with my own, I therefore adopt them as mine and endorse the entire judgment affirming the judgment of the lower Court, and abide by all consequential orders including the order on costs. Appeal dismissed.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Owerri Judicial Division which affirmed the judgment of the High Court of Imo State wherein the Appellant was convicted for the offences conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990.

BRIEF STATEMENT OF FACTS The Appellant was tried alongside one Andrew Duru on a two counts charge which reads as follows: “STATEMENT OF OFFENCE – COUNT I Conspiracy to commit robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990. PARTICULARS OF OFFENCE Cletus Akalazu and Andrew Duru on 11th day of July, 1998 at Ihiteaforukwu in the Ahiazu Mbaise, in the Mbaise Judicial Division, conspired with other people at large to commit offence to wit: robbery.

STATEMENT OF OFFENCE – COUNT II Armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII Laws of the Federation of Nigeria, 1990.

PARTICULARS OF OFFENCE Cletus Akalazu and Andrew Duru on 11th day of July, 1998 at Ihitte Aforukvvru in the Ahiazu Mbaise, in the Mbaise Judicial Division armed with firearms and robbed one Victor Nwoko of his property which included Mercedes Benz car with registration No. AA 328 AFR, some cartons of drugs, cosmetics and provisions, typewriter and cartons of drinks, all property are worth N946,000.00.”

At the trial of the case, the Respondent as prosecution called four witnesses and tendered seven exhibits, including Exhibits A and C, the Appellant’s confessional statements. The Appellant testified in his defence, while his mother testified as DW2. The second accused person also testified alongside his wife.

It was the case of the Respondent that the Appellant and seven others while armed with guns robbed PW2, Victor Nwoko on 11th July, 1998 and carted away properties worth N946,000.00. Four of them were said to be masked while the other four were not. PW2 reported the matter to Ahiazu Mbaise Police Station, but when he noticed that the matter was not being satisfactorily investigated, he made another report at the State CID Headquarters on 21st July, 1998. That in the first week of July, 1998 there was another robbery incident in the house of one Dr Wilson Emele “Wellinco”.

The security men at the house of the said Wellinco engaged the robbers and that one of the said robbers escaped with gunshot wounds. That the matter was reported to the police and it was discovered that one Osita was lying critically ill in the hospital after sustaining bullet wounds. In order to apprehend the robbers, the Police set up surveillance at the hospital and when the Appellant went to visit the said Osita at the hospital, he was arrested by the police at Isiala Mbano.

It was the further case of the Respondent that the Appellant’s case was transferred to the Crack Squad, State Headquarters on 21st July, 1998 the same day, PW2 went to the Crack Squad, State Headquarters. That as PW2 was leaving after writing his statement, he saw the Appellant and he immediately identified him as one of the armed robbers who robbed him. Respondent stated further that the Appellant was re-arrested and interrogated by the police pertaining to the robbery of PW2 and he confessed to committing the crime.

That an identification parade was subsequently conducted wherein PW2 for the second time identified the Appellant as part of the robbers who robbed him on 11th July, 1998.

The case of the Appellant on the other hand was that he was at his barbing salon on the day of the said incident and after the close of work, he went to sleep at his parent’s house.

At the conclusion of the trial and after the adoption of final addresses, the trial Court found the Appellant guilty as charged and sentenced him to 20 years imprisonment for the offence of conspiracy to commit robbery and death by hanging or firing squad in respect of the offence of armed robbery. The 2nd accused person was discharged and acquitted.

The Appellant was dissatisfied by the judgment of the trial Court and he appealed to the lower Court, which appeal was dismissed. He has now appealed to this Court via a Notice of Appeal which was subsequently amended. The Amended Notice of Appeal contains six grounds of appeal.

APPELLANT’S SUBMISSIONS AND ARGUMENTS Counsel distilled four issues for the determination of the appeal as follows: “1. Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt (Ground One). 2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of the PW2 Victor Nwoko purportedly identifying the Appellant as the person who robbed him (Ground 2). 3.

Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements (Ground 3 and 4). 4. Whether the Supreme Court ought not to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal. (Grounds Five and Six)”

​Counsel argued issues one and two together and by so doing, he submitted that the case against the Appellant was concocted because the evidence of the prosecution witnesses were contradictory. That the fact that there was an identification parade shows that PW2 did not correctly identify the Appellant when he first spotted him at the police station. The cases of OSUAGWU v. STATE (2013) ALL FWLR (PT. 672) 105; ADESINA v. STATE (2012) ALL FWLR (PT. 644) 1 were referred to. Relying on the cases of EBIRI v. STATE (2004) ALL FWLR (PT. 216) 42; IKEMSON v.

STATE (1989) 3 NWLR (PT. 110) 455; ARCHIBONG v. STATE (2006) 14 NWLR (PT. 1000) 242, it was submitted that whenever a case against an accused person depends wholly or substantially on the correctness of the identification of the accused person, the Judge ought to warn the jury of the special regard for caution before convicting the accused in reliance on the correctness of the identification. That there was nothing on record to show that an identification parade was properly conducted.

He submitted that the identification of the Appellant by PW2 who claimed to recognize the Appellant, but also claimed that he was asked to lie down immediately the robbers got to his office cannot be relied on. He submitted that it must be established that there was adequate opportunity under satisfactory conditions for victim to identify the accused person before a spontaneous recognition can be acceptable. Reference was made to the cases of ORIMOLOYE v. STATE (1984) NSCC 654; EYISI v. STATE (2000) 15 NWLR (PT. 691) 555; OTTI v. STATE (1993) 4 NWLR (PT. 290) 675.

Arguing issue 3, counsel submitted that the Appellant’s confessional statements, Exhibits A and C were not voluntarily made and that the lower Court was wrong to have admitted same in evidence despite the Appellant showing during the trial within trial that the statements were made under duress. He also pointed out that the statements were not taken before a Superior Police Officer for endorsement despite PW1 acknowledging that he knew that was the usual practice within the Police.

It was submitted that the Appellant’s confessional statement went missing at the registry of the Court below, hence this Court cannot pronounce on the voluntariness or otherwise of same. He therefore urged this Court to acquit and discharge the Appellant.

The sum total of counsel’s submissions on issue no.4 was that the lower Court did not properly evaluate the evidence before it, hence its findings were perverse and the decision of the lower Court affirming same was also perverse. He relied on the following cases: OSHOBOJA v. AMIDA & ORS (2009) LPELR-2803 (SC); ATOLAGBE v. AWUNI (1997) 9 NWLR (PT. 22) 536; DALHATU v. TURAKI (2003) 7 SC 1; AFOLABI v. STATE (2016) 11 NWLR (PT. 1524) 497; ABUDU v. THE STATE (1985) 1 NWLR (PT. 1) 55; NWOSU v. THE STATE (1986) 4 NWLR (PT. 35) 348.

In his final analysis, he urged the Court to allow the appeal, set aside the conviction and sentence of the Appellant and in its place acquit and discharge the Appellant.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS Counsel on behalf of the Respondent formulated the following issues for determination: “1. Whether the learned Justices of the Court of Appeal were right in holding that the prosecution by credible evidence adduced at the trial, established the case of conspiracy and armed robbery, against the Appellant beyond reasonable doubt, warranting his conviction? (Distilled from Ground One of the Grounds of Appeal). 2.

Whether the learned Justices of the Court of Appeal were justified in holding that the Appellant was properly identified as one of the robbers by PW2 – Victor Nwoko? (Distilled from Ground Two of the Grounds of Appeal). 3. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant, relying on the corroborated confessional statements properly admitted in evidence, amongst other pieces of incriminating evidence? (Distilled from Ground Three and Four of the Grounds of Appeal). 4.

Whether the Supreme Court ought to interfere in the concurrent findings of the two lower Courts having regards to the facts and circumstance of this appeal? (Distilled from Grounds Five and Six of the Grounds of Appeal).

On issues one and two, it was the submission of counsel that the charge against the Appellant was proved beyond reasonable doubt. He submitted that PW2 properly identified the Appellant. That although the incident occurred at night, there was electricity at the time of the incident and that while PW2 was asked to lie down, he testified that he did not hand over the key of his car to the armed robbers while lying down. Reference was made to OSUAGWU v. THE STATE (2009) 1 NWLR (PT. 1123) 538.

It was also submitted that PW2 was consistent in his testimony of how he spontaneously identified the Appellant and how he identified him during the identification parade. It was submitted that the failure of the Respondent to call other persons present during the armed robbery incident is not fatal as the case was nevertheless proved beyond reasonable doubt. Reliance was placed on the cases of UDO v. STATE (2006) ALL FWLR (PT. 337) 456; ODUREYE v. STATE (2001) FWLR (PT. 38) 1203; NWAEZE v. STATE (1996) 2 NWLR (PT. 425) 4.

Learned counsel also submitted that Section 167 (d) of the Evidence Act, 2011 applies where the prosecution withholds evidence, not where it fails to call a witness. The cases of AKINYEMI v. THE STATE (1999) 6 NWLR (PT. 607) 449; ATTAH v. STATE (2009) 15 NWLR (PT. 1164) 284; UDO v. STATE (supra) were cited in support.

On issue three, it was submitted that while a Court can convict on an uncorroborated confessional statement, there was sufficient evidence on record to corroborate the Appellant’s confessional statement. He placed reliance on the cases of NWACHUKWU v. THE STATE (2007) 17 NWLR (PT. 1062) 31; NSOFOR v. THE STATE (2005) ALL FWLR (PT. 242) 397; ALARAPE v. THE STATE (2001) 5 NWLR (PT. 705) 86.

That the Appellant in his confessional statement referred to the robbery at the house of Wellinco; how he went to visit Osita at the hospital and he also referred to one Nicholas Akaluzu in Port Harcourt whom he claimed to have sold the stolen Mercedes Benz to. It was submitted that the contention that the confessional statements got lost at the registry is unfounded as those statements are at pages 12 – 14 of the record of appeal.

Learned counsel also submitted that although taking the Appellant before a Superior Police Officer to endorse his confessional statement reinforces the voluntariness of such a confessional statement, failure to do so does not vitiate the confession. He relied on the cases of EGBOGHONOME v. STATE (2001) 2 ACLR 262; DIBIE v. STATE (2007) ALL FWLR PT. 363 83.

On issue four, it was submitted that the decisions of the Courts below were based on the evidence on record, hence they were not perverse and this Court ought not to interfere with same. Reliance was placed on the cases of WOWEM v. STATE (2021) 9 NWLR (PT. 1781) 295; ALI v. STATE (2021) 12 NWLR (PT. 1781) 159; GALADIMA v. STATE (2017) 12 NWLR (PT. 1580) 339. Counsel finally urged this Court to dismiss the appeal and affirm the conviction and sentence of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery.

RESOLUTION Having considered the grounds of appeal as contained in the Amended Notice of Appeal and the issues distilled by parties for the determination of the instant appeal. I find that the issues distilled by both counsels are identical. However, for the determination of the appeal, I shall adopt the Appellant’s issue one, which I find commodious enough to capture the issues In contention. For ease of reference, the said issue is as follows: Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt?

It is well settled in our criminal justice system that an accused person is presumed innocent until he is proved guilty. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof is beyond reasonable doubt. UKPONG v. STATE (2019) LPELR-46427(SC); AMOS v. STATE (2018) LPELR-44694(SC); EWUGBA v. STATE (2017) LPELR-43833(SC) as well as Section 135 of the Evidence Act, 2011.

However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. The doubts that are recognized by the law are doubts that are reasonable, not doubt that can easily be jettisoned as not affecting the judicial mind of the Court. If the evidence against an accused person is so strong as to only leave a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt, but nothing less would suffice. See MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372; UCHE v.

STATE (2015) LPELR-24693; AJAYI v. STATE (2013) LPELR-19941 (SC).

​It is trite that there are three methods through which the prosecution can establish the guilt of an accused person to wit: (i) Through the testimony of an eyewitness; or (ii) By a confessional statement voluntarily made by the accused person; or (iii) By circumstantial evidence which is positive, compelling and points irresistibly to the conclusion that the accused person committed the offence. See OJO v. STATE (2018) LPELR-44699 (SC); KOLADE v. STATE (2017) LPELR-42362 (SC); AKWUOBI v. STATE (2016) LPELR-41389 (SC).

The Appellant herein was charged with two counts of conspiracy to commit armed robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act and armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act.

It is trite law that the prosecution is duty bound to prove the following ingredients beyond reasonable doubt in order to secure a conviction for the offence of armed robbery: 1. That there was a robbery incident or series of robberies. 2. That the robbery or each of the robberies was an armed robbery. 3. That the accused was the armed robber or one of the armed robbers. See DAWAI v. STATE (2017) LPELR-43835(SC); OGOGOVIE v. STATE (2016) LPELR-40501(SC); STATE v. AJAYI (2016) LPELR-40663(SC).

The victim of the crime, Nwoko Victor testified as PW2. He testified in chief at pages 96 – 97 of the record thus: “I was robbed on 11th July, 1998. On 11th July, 1998, I was in my store at Umueze Ihitte Aforukwu. At about 8.30 p.m., I saw eight armed men who entered my office. Four of them were masked while the other four had their faces uncovered. They ordered me to lie down. I quickly lied down and they told me that they were hired by my business colleagues to kill me.

I told them that I had had series of experiences like that and whether they were the people who came in similar occasions in the past. They answered no. They told me that the reason given by the people who hired them to assassinate me were not enough that they rather would take my Mercedes Benz with registration number AA 328 AFR, IM 1428 YZ was the former plate number. They demanded the key to my store which I gave to them. They opened my store and carted away many cartons of hot drinks, wine, provisions and drugs and a typewriter. All valued at N940,000.00.

They left my store and fired two gun shuts (sic). My office is attached to my store.”

Under cross-examination, he said at page 100 of the record: “On that day, I saw 8 men entered my store, 4 of them were masked. They pointed gun at my face and asked me to lie down.”

His evidence in this regard during both examination in chief and cross-examination was in consonance to his statement to the police, Exhibit F wherein he stated as follows: “That on 11/7/98, by 8 pm, eight men with guns jumped into my office pointing at my face ordering me to lay down which I did. They asked me that my business members told them to come and kill me. That the reason they gave is not enough, that if they kill me, my blood will be on their heads.

They then asked me the key to my M/230 salon car and the key to my store which I handed over to them, after which they parked all the drugs, drinks, provisions, cosmetics, typewriter and the M/ 230 (No. AA 328 AFR) old No. IM 1428 YZ, L/yellow in colour. They locked me in with my two workers and my friend and they gave out two gunshots and left.”

Flowing from the foregoing, and in the absence of any contrary evidence on the record, I have no hesitation in holding that the first two ingredients of the offence of armed robbery, that is, (1) that there was a robbery or a series of robberies and (ii) that the robbery or each of the robberies was an armed robbery were proved beyond reasonable doubt by the Respondent at the trial Court.

In a bid to prove the third ingredient of the offence of armed robbery, the Respondent tendered among other exhibits, the confessional statements of the Appellant, Exhibits A and C which were admitted in evidence after going through trial-within-trial and found to have been voluntarily made. The Appellant’s counsel contended that Exhibit A was not voluntarily made and was made by the Appellant when he had an “unsettled mind” because the Appellant therein was referring to another event.

The contention of the Appellant’s counsel in this regard is not supported by the evidence on the record before the Court. In Exhibit A made on 21st July, 1998, the Appellant stated as follows: “Today 21/7/98 by the time the police of Isiala brought us before the Crack Squad Police in a handing over issue, suddenly one slim black man identified me as one of the persons that robbed him of his properties including his Mercedes Benz car on 11/7/98. We are (sic) four that robbed the man on 11/7/98.

The name of the other people that robbed the man are… The Mercedes Benz sold to one Andrew Duru of Amaraka at the cost of N360,000.00.” ​ I struggle to see how the events narrated in Exhibit A did not relate to the events of the armed robbery committed against PW2. This contention of counsel is therefore baseless and misleading. I am also of the view that having an unsettled mind, as submitted by the Appellant’s counsel is not a vitiating factor affecting the voluntariness of a confessional statement.

Another grouse of the learned counsel in respect of the confessional statements, Exhibits A and C is that the Appellant was not taken with the statements before a superior police officer for endorsement. Now, it is settled that the practice of taking a suspect with his confessional statement before a superior police officer for endorsement is not a prerequisite for admission of such confessional statement in evidence. This practice otherwise known as the Judge’s Rules is only an administrative practice to further ensure the voluntariness of confessional statements.

While it is desirable, failure to observe the procedure cannot vitiate a confessional statement. See STATE v. SA’IDU (2019) LPELR-47397 (SC); TOPE v. STATE (2019) LPELR-47837 (SC); KASA v. STATE (1994) LPELR-1671 (SC).

As long as a Court is satisfied that a confessional statement was made voluntarily, it can convict an accused person solely on that confession if same is direct and positive on the offence charged. If this is the case, the fact that the confessional statement is retracted at trial will not detract from its voluntariness or its admissibility. See STATE v. SA’IDU (supra); AWOSIKA v. STATE (2018) LPELR-4435 (SC); LASE v. STATE (2017) LPELR-42468 (SC).

In the instant case, the learned trial Judge admitted Exhibits A and C upon being satisfied of their voluntariness after conducting trial within trial to ensure their voluntariness. Nevertheless, it is desirable that there are some corroborating evidence, no matter how slight that supports the Appellant’s confessional statement. See AWOSIKA v. STATE (2018) LPELR-44351 (SC); SUNDAY v. STATE (2017) LPELR-42259 (SC); OLANIPEKUN v. STATE (2016) LPELR-40440 (SC).

The trial Court examined the evidence on record and found corroborative evidence establishing the truth of the contents of the Appellant’s confessional statements. The learned trial Judge held at pages 154 – 155 of the record of appeal: “The 1st accused person retracted his confession in his evidence during trial. It is then desirable to have some evidence outside the confession which would made (sic) it probable that the confession was true. In order words, is it corroborated? Is the confession consistent with other facts which have been ascertained as true, even if slight. See John Ebegue v.

The Attorney General Bendel State (1994) 2 NWLR part 326, 273 at 286 Para. B-C. Also Grace v. The State (1988) 3 NWLR Part 85 729. Salewu v. The State (1971) N.M.L.R. 249. Apart from the contents of Exhibits A and C, the P.W.1 in his evidence stated that the 1st accused person was transferred to the State, Police Headquarters, Owerri from Mbano Div. Police Headquarters in connection with another case of armed robbery in the house of one Wellinco.

That at Owerri Police Headquarters, the P.W.2 saw the 1st accused person and identified him as one of those who robbed him of his property at gunpoint.

The D.W.1 (1st accused person admitted in his oral evidence there was robbery in the house of Wellinco and he went to visit one Osita at Extra Care hospital Amaraku where the Police arrested him… Also in his oral testimony, the 1st accused person confirmed that the said Osita was fired during the robbery at Wellinco’s house… In both Exhibits A and C, the 1st accused narrated the robbery incident in the house of Wellinco and how one Osita was shot during the robbery operation and how he visited him at the hospital at Amaraku where the Police arrested him and took him to Owerri.

Furthermore, it is in evidence of PW1 that he visited the Palace Hotel, Amaraku mentioned in Exh A and the owner of the hotel and the workers stated that they know the 1st accused person who was coming to the hotel but know nothing about his mission to the hotel…”

I cannot but agree with the above meticulous and unassailable findings of the trial Court. There are ample evidence on record corroborating Exhibits A and C. ​ Learned counsel for the appellant also contended that this Court is precluded from pronouncing on the voluntariness or otherwise of Exhibits A and C because they were lost at the registry of the Court below. The simple answer to this is that counsel’s assertion is not supported by the evidence on record.

An appeal is a rehearing of the case determined by the lower Court and the rehearing is done on the basis of the record of appeal compiled and duly transmitted to the appellate Court. See OLORUNYOLEMI & ANOR v. AKHAGBE (2010) LPELR-2957 (SC). Upon perusing the record, the confessional statements made by the Appellant are at pages 12 – 14.

Counsel for the Appellant in this appeal is not challenging the record of appeal on the basis of incompleteness or inaccuracy. In the absence of such a complaint, both the parties and the Court are bound by the contents of the record of appeal. See the cases of AUDU v. FRN (2013) LPELR-19897 (SC); AUDU v. AG FEDERATION & ANOR (2012) LPELR-15527 (SC); TEXACO PANAMA INC. v. S.P.D.C. (NIG) LTD (2002) LPELR-3146 (SC). Against this background, the complaint of the Appellant’s counsel as regards the record of appeal discountenanced.

Counsel for the Appellant also challenged the identification of the Appellant by PW2, the victim of the crime. It has been held that identification of an accused person can take different forms, including: a. Visual identification. b. Voice identification. c. Identification parade. See ISAH v. STATE (2017) LPELR-43472 (SC); NDUKWE v. STATE (2009) LPELR-1979 (SC); EYISI & ORS v. STATE (2000) LPELR-1186 (SC).

In the case at hand, the Appellant was first identified spontaneously by PW2 (a form of visual identification) before an identification parade was conducted wherein he was identified again by PW2. The evidence of PW2 is as follows: “I made another complaint at the police State C.I.D, Owerri. After finishing my statement to the police at Owerri as I was coming out, I saw one person i.e. the 1st accused person at the police. I quickly told the police and showed him the 1st accused person – Cletus Akalazu as one of the people who robbed me. The police arrested and interrogated him.

He confessed that he was one of those who robbed me. He mentioned the names of six other people who participated in the robbery… The accused persons were not masked. I first came to know the accused person during the robbery in my store. At the State Police headquarters, the police carried out identification parade. I was able to identify the 1st accused person and some other person who are not here.” ​ These facts established in the evidence in chief of PW2 were not refuted during cross-examination.

Counsel for the Appellant contended that PW2 lacked the opportunity to properly observe the features of the armed robbers so as to be able to spontaneously identify the Appellant as one of them.

It is pertinent to state that there is unchallenged evidence on record that during the armed robbery operation at about 8:30 pm, there was electric power supply at the time. PW2 also gave unchallenged evidence that of the eight people who robbed him, four were masked, but the other four were not. He also testified that he was not laying down at the time he handed over the key to the armed robbers. All these, in my humble view, point to the fact that PW2 had enough opportunity to observe the features of the Appellant such that he was able to identify him spontaneously.

The spontaneous visual identification renders the subsequent identification parade unnecessary. See LAWALI v. STATE (2019) LPELR-46405 (SC). The identity of the Appellant by PW2 in a subsequent identification parade which was conducted out of abundance of caution makes the identification of the Appellant infallible. I therefore entertain no doubt that the identity of the Appellant by the prosecution was proved beyond reasonable doubt.

From all that I have said, I am persuaded to agree with the lower Courts that the Respondent proved beyond reasonable doubt that the Appellant was one of the armed robbers who robbed PW2 of his possessions on 11th July, 1998.

The Appellant was also convicted for the offence of conspiracy to commit robbery. The offence of conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. The offence of conspiracy is a unique one in the sense that it is usually started and completed behind closed doors. For this reason, the offence is hardly ever capable of being proved by direct evidence.

Proof of conspiracy is often obtained from one of the conspirators or from inferences from certain act or acts of the party or parties concerned in pursuance of an apparent criminal purpose between them. The essential element of the offence of conspiracy lie in the meeting of the minds of the conspirators to do an unlawful act or to do a lawful act by unlawful means. See IBOJI v. STATE (2016) LPELR-40009 (SC); OKASHETU v. STATE (2016) LPELR-40611 (SC); ABACHA v. STATE (2002) LPELR-16 (SC).

​The Appellant herein narrated in his confessional statements of how the offence of armed robbery committed against PW2 was hatched and he also stated that the armed robbery was carried out by four persons, including himself. PW2 also narrated how he was robbed by eight persons, including the Appellant, on the day of the incident. The key takeaway from this is that the armed robbery was orchestrated and carried out by the Appellant and other persons among whom there was undoubted meeting of the minds to commit the offence.

Against this backdrop of the above, I hold that the offence of conspiracy to commit robbery was proved beyond reasonable doubt by the Respondent and the lower Courts were right to so hold.

The attitude of this Court to the concurrent findings of facts by the two Courts below is no longer in doubt. This Court will only interfere or disturb such concurrent findings if the Appellant can show that the concurrent findings of facts are either perverse or they occasioned a miscarriage of justice to the Appellant. See AHMED & ORS v. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC); NOMAYO v. STATE (2018) LPELR-44729 (SC); CAMEROON AIRLINES v. OTUTUIZU (2011) LPELR-827 (SC).

The Appellant herein has been unable to show that the concurrent findings of the two Courts below are perverse or not based on evidence before the Courts. This Court is therefore precluded from interfering with the concurrent findings of the two lower Courts.

In the final analysis, this appeal is hereby dismissed for lacking in merit. The judgment of the lower Court affirming the conviction and sentence of the Appellant by the trial Court is hereby affirmed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Adamu Jauro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is unmeritorious and deserves to be dismissed. It is dismissed by me. Appeal dismissed.

EJEMBI EKO, J.S.C.: The Appellant was the 1st Accused at the trial Court. He was tried on two count charges, with one other, of conspiracy to commit robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, and armed robbery contrary to Section 1(2)(a) of the same Robbery and Firearms (Special Provisions) Act, Cap 398 of 1990 LFN. ​The trial Court, on 25th June, 2004, convicted the Appellant on the 2 offences, and imposed a sentence of 21 years for the conspiracy and death sentence for armed robbery on him.

His appeal to the Court of Appeal (the lower Court) against the conviction and sentences was dismissed; hence the instant further appeal brought initially on 5 grounds, filed as of right. The amended Notice of Appeal filed on 26th January, 2021, but deemed on 20th January, 2022, has 6 grounds of appeal.

All the six (6) grounds of appeal raise issues of fact and/or evaluation of the facts on which his conviction by the trial Court was sustained by the lower Court. The original 5 grounds of appeal, all raising issues of fact alone and improper evaluation of evidence were filed as of right.

The seeming incompetence of the original grounds of appeal are condoned by Section 233(2)(d) of the Constitution, 1999, the lower Court having “affirmed (the) death sentence imposed” on the Appellant by the trial Court. ​ The Appellant’s Counsel distilled 4 issues for the determination of the appeal from the 6 grounds of appeal per the Amended Notice of Appeal. The 4 issues read thus 1. Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt (Ground one). 2.

Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of PW.2, Victor Nwoke, purportedly identifying the Appellant as the person who robbed him? (Ground 2). 3. Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements? (Ground 3 & 4). 4.

Whether the Supreme Court ought not to interfere in the concurrent findings of the lowers in the circumstance of this appeal? (Grounds 5 & 6).

​Ground 5, from whence the issue 4 was inter alia purportedly distilled, complained that the lower Court “erred in law in affirming the conviction of the Appellant on the ground that his counsel at the trial Court did not challenge or confront the prosecution with certain facts testified to at the trial”. It did not raise any issue of the inherent powers of this Court to interfere with concurrent findings of fact that are perverse. The lower Court’s decision did not, in any way, prospectively touch on that inherent powers of this Court.

Issue 4, certainly, was not formulated from Ground 5 of the Amended Notice of Appeal. Like Ground 5, Ground 6 did not raise any issue that the lower Court erred in touching on the prospective discretion of this Court upon finding that the decision appealed was perverse. The complaint in the said Ground 6 is simply that “the lower Court failed to properly evaluate the evidence placed before it by the prosecution and the Appellant to enable the Courts to make findings in favour of the Appellant”.

No issue, admittedly, of either the lower Court or this Court denying the inherent powers of this Court “to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal”, is decipherable from this Ground 6. ​Issue 4, not distilled from any ground of appeal before this Court, is incompetent just as Grounds 5 & 6 have been abandoned as no issue therefrom had been distilled for the determination of the appeal by this Court. I will, therefore, not hesitate to strike out the incompetent issue 4 and the abandoned Grounds 5 & 6. They are accordingly struck out.

Cumulatively Grounds 1 – 4, and issues 1, 2, & 3 respectively, complain that the lower Court, in its concurrent judgment, erred in affirming the decision of the trial Court on facts. The Appellant’s Brief of Argument was devoted substantially to attacking the decision of the trial Court that is not appealable to this Court.

Except the terse statement made in paragraphs 3.21 and 3.22 of the Appellant’s Brief of Argument, under issue 3, that the concurrent findings of fact were perverse and that the lower Court had wrongly affirmed the propriety of the identification of the Appellant; no other tangible effort was made to attack the decision of the lower Court appealed. ​ At pages 276 – 280 the lower Court made elaborate findings of fact that the Appellant was on 21st July, 1998, at the Police Station, spontaneously identified by the PW.2, a victim of the robbery, upon sighting him for the first time after the robbery; thus affirming the earlier finding of fact by the trial Court on this point.

The unchallenged and undiscredited evidence of the PW.2 at page 97 of the printed Record support these findings of fact. The Appellant’s extra judicial statement, Exhibit B, supports these findings of fact.

Exhibits A & C are Appellant’s confessional statements, admitted in evidence after rigours of trial-within-trial. No ground of appeal attacks the finding of fact by the trial Court, upon the trial-within-trial, that Exhibit A & C are confessional statements made voluntarily by the Appellant. The confessional statements corroborate the evidence of PW.2 fixing the Appellant to the scene of crime and to the fact that the Appellant was one of the robbers.

The attitude of this Court to specific findings of fact, supported by available evidence on the record, is that; it is not the duty of the Court of Appeal to recapitulate such findings once the Court of Appeal was satisfied that the findings were based on the evidence: IRIRI & ORS v. ERHURHOBARA & ANOR (1991) 3 SC 1; (1991) 1 NWLR (pt. 173) 252 citing CHIEF EBBA v. CHIEF OGODO & ANOR (1984) 1 SCNLR 372. This Court, in the circumstance, will not substitute its discretion for that of the intermediate Court.

The issues put forward in this appeal, for the determination of the appeal situate this appeal squarely on the concurrent findings of fact by the two Courts below. The findings are not perverse. And that is the only veritable ground for this Court, in the second tier appeal, to interfere with and disturb such concurrent findings of fact. Accordingly, I hereby join my learned brother ADAMU JAURO, JSC, adopting his judgment just delivered that there is no substance in this appeal, and dismissing same. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: The Respondent alleged that the Appellant and 7 others, while armed with guns robbed PW2, Victor Nwoko on 11/7/ 1998 and carted away properties worth N946,000.00. four of them were masked while the other 4 were not. PW2 reported the matter to the Ahiazu Mbaise Police Station and later to the State CID headquarters on 21/7/1998. In the 1st week of July, 1998, there was another robbery in the house of Dr. Wilson Emele known as “Wellinco”, wherein one of the robbers, Osita, sustained gunshot wounds and was being treated in the hospital.

In order to apprehend the robbers, the Police set up a surveillance at the hospital and when the Appellant came to visit Osita, he was apprehended by the Police at Isiala Mbano. When the Appellant’s case was again transferred to the Crack Squad on 21/7/1998, PW2 went there to write a statement and when he was leaving, he stumbled at the Appellant, whom he immediately identified as one of the armed robbers that robbed him. That the Appellant was then re-arrested and after interrogation concerning the robbery of PW2 by the Police, he confessed to committing the crime.

An identification parade was subsequently carried out and for the second time, PW2 identified the Appellant as part of the armed robbers that robbed him on 11/7/1998. ​ The Appellant however pleaded alibi that he was at his barbing salon on the day of the incident and when he closed from work, he went to sleep at his parent’s house. After the trial, he was sentenced to death by hanging. On appeal to the lower Court, his case was dismissed, hence this appeal. The Appellant distilled these issues for determination: 1.

Whether the prosecution established the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt. 2. Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the Appellant based on the evidence of the PW2, Victor Nwoko purportedly identifying the Appellant as the person who robbed him. 3.

Whether the learned Justices of the Court of Appeal were right in law when they affirmed the conviction and sentence of the Appellant based on distilled confessional statements which even did not corroborate each other and when no other pieces of evidence or facts were found corroborating the purported confessional statements. 4. Whether the Supreme Court ought not to interfere in the concurrent findings of the lower Courts in the circumstance of this appeal.

I have read in draft the lead judgment just delivered by learned brother, Adamu Jauro, JSC, wherein he dismissed the appeal of the Appellant.

The Appellant in his issue four (4) asked this Court to interfere in the concurrent findings of the lower Courts and give judgment in his favour.

​Aside the fact that I have not discovered any legal or factual reason to interfere with the concurrent findings of the lower Courts, I have seen much soundness and foolproofness in the lead judgment that I cannot tamper with but endorse. The appeal is hereby dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read the leading judgment delivered by my learned brother, Adamu Jauro, JSC, in draft and find the views expressed on the four (4) issues raised by the Appellant and the conclusion that the appeal deserves to be dismissed for being bereft of merit.

The leading judgment has comprehensively dealt with the issues in line with the extant positions of the law as stated and restated by this Court in the judicial authorities referred to and many more. ​ I join in dismissing the appeal for lack of merit and affirming the concurrent decisions of the two (2) lower Courts on the conviction of and sentences on the Appellant for the offences of conspiracy to commit armed robbery and armed robbery.

Judgment

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The appellant, who was the second accused person at the Abeokuta Judicial Division of the High Court of Ogun State, was arraigned alongside three other accused persons, on a four-count charge of Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Armed Robbery contrary to Sections 6 (b), 1 (2)(a) and 2 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.

At the trial, the appellant pleaded not guilty to all charges. The Prosecution called eight (8) witnesses and tendered exhibits in proof of their case. In their defence, the appellant and his co-accused persons testified for themselves and their Counsel addressed the Court. The trial Court, in its judgment delivered on the 19th day of October, 2015, convicted and sentenced the appellant to death by hanging.

​Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court of Appeal (“lower Court”). By a judgment delivered on the 6th day of December, 2019, the lower Court affirmed the decision of the trial Court and dismissed the appeal.

Still dissatisfied with the judgment, the appellant appealed to this Court, via an Amended Notice of Appeal filed on the 29th day of January 2020, containing eight (8) grounds of appeal.

​The appellant, by his brief of argument, filed on the 29th day of January, 2020 and deemed filed on the 9th day of December, 2021, distilled four issues for determination, to wit: 1. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when it held that the prosecution proved the offence of conspiracy to commit armed robbery, armed robbery and attempted armed robbery against the appellant beyond reasonable doubt? 2.

Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the reliance placed on exhibits 2, 2A and 7, the alleged confessional statements of the appellant and the testimonies of PW1 and PW2 to convict the appellant without any consideration of the defence put forward by the appellant? 3. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when the evidence of PW1 to PW7 are not cogent enough or sufficient to support the charge of armed robbery under the Robbery and Firearms (Special Provisions) Act? 4.

Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the totality of evidence adduced by the Prosecution, the learned Justices ought to have set aside the judgment of the Trial Judge and in its place discharged and acquit the appellant?

In response, the respondent, by a brief of argument filed on the 30th day of October, 2020, and deemed filed on the 9th day of December, 2021, formulated two issues for determination, to wit: 1. Whether the lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements; and 2. Whether the lower Court was right in affirming the trial Court’s conviction and sentence of the appellant.

​My Lords, I have closely examined the issues identified in the respective briefs of the parties. I find that the respondent’s issue No. 1 is identical with issue No. 2 of the appellant. The respondent’s issue No, 2 is identical with Issue Nos. 1, 3 and 4 of the appellant. For this purpose, I take the view that the respondents’ two issues are actually determinative of this appeal.

ISSUE ONE Whether the Lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements?

APPELLANT’S SUBMISSIONS Learned Counsel for the appellant contended that the trial Court failed in its duty to take the evidence of the appellant as a whole in considering the defence open to him, Asanya v State (1991) 3 NWLR (pt. 180) 422, 452. He referred to pages 117 and 118 of the Record of Appeal, wherein the appellant had alleged that he had been trapped and set up to write those statements during trial.

​Learned counsel pointed out that there were contradictions in the testimony of PW1 and PW2, adding that on this score alone, it is crystal clear that the identity of the person who purportedly attacked PW1 or victim of 1st June, 2012 was in doubt and the Police ought to have conducted an identification parade to ascertain the veracity of PW1 and PW2’s claim.

He argued further that the incident occurred at night when vision cannot be said to be very clear thereby necessitating an investigation as to the real identity of the perpetrator of the alleged offence as required by law in such circumstance. He cited these cases: Eyisi v The State (2000) 12 SC (pt.1) 24; Okosi v The State (1989) 2 SC (pt.1) 126 and Alonge v IGP (1959) SCNLR 15; State v Olashehu Salawu (2011) 12 SC (pt. IV) 191 at 237; Bozin v State (1985) 2 NSCC 1087, 1091.

Arguing further, he submitted that the trial Court erred when it relied on the appellant’s alleged confessional statements, exhibits 2A, 2, and 7, holding that the confessional statements have been freely and voluntarily made without properly considering the defence of the appellant and/or test the truth and make specific findings and pronouncements on same.

He opined that the lower Court erred by affirming the trial and conviction of the appellant based on exhibits 2,2A and 7 as it was erroneous for the trial Judge to hold that the confessional statement of the appellant is corroborative enough with evidence of PW1, PW2 and PW3 that cannot be relied upon, and this has occasioned a serious miscarriage of justice.

​Learned Counsel urged this Court to resolve this issue equally in favour of the appellant as the evidence of the appellant before the trial Court was compelling enough to exonerate him from the offences with which he was charged before the trial Court.

RESPONDENT’S ARGUMENTS On this issue, learned counsel for the respondent first submitted that the confessional statements in issue fall within the definition of a confessional statement. Secondly, he contended that the statements in issue met the conditions for the admissibility of a confessional statement.

With reference to the case of Hassan v The State (2001) LPELR-1358 (SC), learned counsel posited that exhibits 2 and 2A were statements signed by the appellant, adding that in the statement, appellant narrated how the idea of stealing a motorcycle in Abeokuta and selling it in Ibadan was conceived by the third accused person on 27th May, 2012, which in his view, constitutes a confession to Count 1 of the charges against the appellant.

​He explained further that, in the said exhibits, the appellant also narrated how, upon executing their plan, the third accused person broke a bottle on PW1’s head while the appellant cut PW1 with a UTC knife to facilitate their escape with the motorcycle. These facts, he submitted, constituted a confession to Count 2.

​He further pointed out that the appellant also narrated how the first and third accused persons came back to his house with a gun on Thursday, 31st May, 2012. On 1st June, 2012, the first accused person accompanied him and the third accused person to a junction before returning, adding that this constituted a confession to Count 3.

He stated further that the appellant had narrated how they halted a motorcycle and at their destination, they tried to dispossess the rider of it. He could not shoot the rider because it was his first time handling a gun and as the rider shouted for help, they escaped into the bush before they were eventually caught by civilians in the neighbourhood. These facts, said learned counsel, constituted a confession to count 4. Learned counsel also referred to exhibit 7, signed by the appellant, as also constituting admissions to Counts 1, 2, 3 and 4 preferred against him.

​It is the opinion of learned counsel that the statements in issue met the conditions for the admissibility of a confessional statement. In support of this submission, heavy reliance was placed on the case of Ajiboye v F.R.N (2018) LPELR-44468 (SC).

He contended further that on 10th June, 2015, when the Prosecution sought to tender exhibits 2 and 2A, being the confessional statements of the appellant, he raised no objection to same and the Court admitted the statements. Similarly, on 23rd June, 2015, when Prosecution sought to tender exhibit 7, also a confessional statement made by the appellant, no objection was made and same was duly admitted. He added that failure to object to the admissibility of the confessional statements shows that the Prosecution had sufficiently proved that same was voluntary and unequivocal.

On this point, learned counsel referred to the case ofIsa v Kano State (without citation).

He referred to pages 117-119 of the Records. Therein, the appellant, during his examination-in-chief, admitted to having written and signed exhibits 2, 2A and 7. He called in aid the case of Tope v State (2019) LPELR-47837(SC).

He further stated that the appellant’s testimony therein, could, at best, only constitute a retraction of the statements, which will not affect its admissibility but will only go to the weight or probative value to be given to such evidence, Hassan v The State (2001) LPELR-1358 (SC); Akpan v The State (1992) 6 NWLR (Pt. 248) 439; (1992) 7 SCNJ 22; Galadima v State (2012) LPELR-15530 (SC); Olanipekun v State (2016) LPELR-40440 (SC). Learned Counsel urged this Court to affirm the decision of the Lower Court on this issue.

RESOLUTION OF THE ISSUE In all criminal cases before a Court of law in this country, there are always two sides: the case for the Prosecution and the case for the defence. Consequently, regardless of where or in what manner an accused person makes his statement to the Police or other law enforcement agents, the attitude of the Courts towards it remains the same. It comes to this. It is a part of the case for the Prosecution, whether or not it is a confessional statement and whether or not the accused person challenges it during the trial, Egboghonome v State (1993) 7 NWLR (pt. 306) 383.

The question of its admissibility is a separate issue entirely. ​Now, on the issue of admissibility, two factors can affect the admissibility of a confessional statement, that is, where the confessional statement has been found not to be voluntarily made or where the contents of the confessional statement are retracted by its alleged maker.

In the former, where an objection is raised, the proper action to take by the Courts is to suspend the substantive suit and immediately commence the conduct of a trial-within-trial to determine the voluntariness or non- voluntariness of the confessional statement. Whereas, in the latter case, the confessional statement can still be admitted and the issue will go to the evaluation of the statement and the ascription of probative value to be placed on same, Kanu v King (1952) 14 WACA 30; Idowu v State 12 NWLR (pt. 680) 48; Mumuni v State (1975) 6 SC 79; Galadima v State (2012) LPELR – 15530 (SC).

The proper time to raise objection on any of these grounds in at the point it is being tendered, Oseni v State (2012) 2 M. J. S. C (pt 11) 98; Effiong v The State (1998) 5 SCNJ 158, 166; Gbadamosi v The State (1992) 9 NWLR (pt 266) 465, 480; Afolalu v State 3 NWLR (pt 11270) 160, 193; Alarape v The State (2001) 5 NWLR (pt 705) 79; Mbang v The State (2009) 8 NWLR (pt 1170) 140; Okaroh v State (1990) 1 NWLR (pt 125) 136. ​In the instant case, the confessional statements, exhibits 2, 2A and 7 of the appellant were tendered by the Prosecution.

They were admitted in evidence without any objection on any of the aforementioned grounds. It was during trial that the appellant made, as submitted by learned counsel to the respondent and which I so hold, a belated attempt to impeach the voluntariness of exhibits 2, 2A and 7. This, in my opinion could not avail the appellant at this point, Oseni v State (supra); Effiong v The State (supra); Gbadamosi v The State (supra); Afolalu v State (supra); Alarape v The State (supra); Mbang v The State (supra); Okaroh v State (supra).

With regard to the issue of the trial Court’s non-consideration of the defences before it, as alleged by learned counsel for the appellant, I will invite Obaseki, JSC, to respond. In Nwuzoke v The State (1988) 1 NSCC 361, His Lordship explained that: The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused (person) on the evidence and facts before the Court must be considered by the Court.

To refrain from a consideration of the defence because it is considered weak, far-fetched, foolish, conflicting, unfounded and false is to err seriously in the discharge of one’s duty as a Judge. Where there is no evidence to warrant consideration of the defence, the trial Judge has no duty to consider the defence. It is not the duty of the Judge to scout round for defences where there are none and where the evidence does not suggest one see. R. v.

Kwabena Bio (1945) 11 W.A.C.A. 46, 48. (ltalics supplied for emphasis) True, indeed, where there is no such evidence, as in the instant case, the Court is not allowed to speculate or to act within the realms of conjecture, Ekpenyong v The State (1993) 5 NWLR (pt 295) 513.

​From the record of proceeding before this Court, the learned trial Judge, in his judgment, derided the appellant and other accused persons’ attempt at denying the contents of their confessional statements as a “belated after-thought”. This, in my view, is enough to tell any reasonable and right-thinking person, that the Court does not consider the accused person’s defence as being cogent or strong enough to defeat the Prosecution’s case. It is my humble view, that on this issue, the learned trial Judge cannot be faulted.

It is a general rule that this Court does not make it a habit of disturbing the concurrent findings of two lower Courts, unless shown to be perverse, unsupported by admissible evidence or has occasioned a miscarriage of justice, Kale v Coker 12 SC 252; Mbang v The State (2013) 7 NWLR (pt. 1352) 48; Woluchem v Gudi (1981) 5 SC 291, 326; Ike v Ugboaja (1993) 6 NWLR (pt. 301) 569. In the instant case, I have not been able to locate any of these vices.

I am therefore, of the firm view that the lower Court rightly affirmed the trial Court’s reliance on the confessional statements of the appellant in arriving at its decision. This issue is resolved in favour of the respondent.

ISSUE TWO Whether the lower Court was right in affirming the Trial Court’s conviction and sentence of the appellant?

APPELLANT’S SUBMISSIONS It is the position of the learned counsel for the appellant that the Court cannot pronounce the accused person guilty for an offence where the Prosecution has failed to prove common intention to commit a crime by those being charged to Court for such offence, where it is a very important ingredient to establish such offence, Oseni v The State (2012) 4 SCM 150 at 181; Gbadamosi v The State (incomplete citation); Onyenye v The State (2012) 11 SCM 188 at 141.

Learned Counsel submitted further that a case of conspiracy to commit armed robbery, armed robbery and attempted armed robbery was not made out against the appellant as there was no proof of proper identification in which the Prosecution is required to prove that the acts were carried out in broad day light or that the place was lit up. He added that the lower Court erred in affirming the trial and conviction of the appellant by holding that failure of the Prosecution to conduct the identification parade of the appellant is not fatal to the conviction.

He argued further that the trial Court should have rejected the piece of evidence or held that the Prosecution was not able to prove that the appellant and the other accused persons agreed to carry out an unlawful act, placing reliance onAbdullahi v The State (2008) 5-6 SC (pt.1) 1; Ndidi v The State (2007) 13 NWLR (pt. 1052) 633; Olowoyo v State (2012) 17 NWLR (pt. 1329) 346; Bolanle v State (2005) 9 NWLR (pt. 925) 451, paragraphs C-D.

Learned counsel pointed out that the PW1 was not able to establish that any arm or offensive weapon was used. According to him, when the PW1 was being cross-examined, he said that he was attacked by the appellant and the third accused person with a bottle and a machete. However, in a surprising turnaround, he admitted that when he was about to carry them on his motorcycle (having been asked by the appellant and the third accused person), he never saw them with the alleged bottle and machete.

He opined that this actually ought to create doubt in the mind of the Court as it will be irrational to claim that when he was about to carry them he never saw them holding anything, as those objects cannot be hidden if they were actually in possession of the purported weapons.

He posited further that the prosecution failed to prove that the armed robbery which appellant was charged with was as a result of the probable consequence of the execution of a joint intention of the appellant and others to carry out the alleged illegal act of 27th May, 2012.

​According to learned counsel, the Prosecution failed in the cause of trial to establish that the elements of the offence of Armed Robbery as stipulated in the case of Bolanle v The State (supra) were proved against the appellant, adding that PW1 who was said to be the victim of the alleged armed robbery of the 27th day of May, 2012, was unable to testify as to the type of abusive weapon that was used against him.

Arguing further, he submitted that it was PW2 and PW3 who had arrested the appellant that identified him as the person that attacked one Haruna Akinwande, who is the victim of the purported attack on 1st June, 2012, rather than the victim himself who was never called to testify at the trial. He added that failure of the Prosecution to call the victim of 1st June, 2012 was fatal to its case.

Learned counsel further stated that when the totality of the evidence adduced by the Prosecution was not proved beyond reasonable doubt, the lower Court ought not to have affirmed the trial and conviction of the appellant but acquit and discharge him.

​He insisted that the trial Judge’s acceptance of the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 as corroborating the evidence of PW1 is erroneous. He pointed out that the said Prosecution witnesses were not eye witnesses to the incident. They could not have really understood what happened at the scene of the 27th day of May, 2012 when the appellant, along with others, purported to have robbed the PW1 as their own evidence could only establish what happened on the 1st day of June, 2012 to Haruna Akinwande.

He argued further that since the various evidence of the Prosecution witnesses did not pass the true test of what constitutes elements of various offences with which the appellant was charged with, the lower Court ought not to have affirmed the trial and conviction of the appellant. Learned counsel urged this Court to allow this appeal against the conviction of the appellant.

RESPONDENT’S ARGUMENTS Arguing their issue two, learned counsel submitted that the lower Court was right in affirming the conviction and sentence of the appellant. He fortified this submission by stating that there was more than sufficient evidence at the trial Court to convict the appellant for each count of the charges preferred against him.

​Relying on Alao v The State (2019) LPELR-47856 (SC), learned counsel posited that the essential ingredients necessary to prove armed robbery, were proved beyond reasonable doubt.

​He explained further that PW1 testified that he was dispossessed of his motorcycle on the night of the 27th day of May, 2012. His testimony was corroborated by PW7’s testimony, that a stolen motorcycle was recovered from Ibadan and released to PW1 on bond. It was in proof of this that exhibits 8 and 9 were tendered through PW7 and admitted into evidence without any objection from the appellant.

He further pointed out that PW1 stated in his testimony that his assailants were armed with a cutlass and had used same to break his head and cut him. This fact of being armed was admitted by the appellant in his confessional statement (exhibits 2 and 2A), where he stated that he had a UTC knife on him which he used to cut the owner of the motorcycle they were robbing on the said day.

This, he submitted, constituted sufficient evidence before the trial Court to prove the fact that the appellant was armed when he robbed and that the production and tendering of the offensive weapons by which the robbery was committed is not a necessity. On this point, learned counsel cited Olayinka v The State (2007) LPELR-2580 (SC).

As to the identity of the appellant as one of those who took part in the robbery, learned counsel submitted that there was no doubt that the appellant was one of the two people who robbed PW1 on 27th May, 2012.

He invited this Court’s attention to the testimonies of PW5, the officer on duty when PW1 came to report the incident of armed robbery of his motorcycle; and PW1 who testified that he identified the appellant and the third accused person as his assailants, adding that this fact was corroborated by the testimonies of PW2, PW3 and the appellant himself by his confessional statements in exhibits 2, 2A and 7.

Learned counsel argued further that the issue of identification does not affect admissibility of the evidence of the witnesses but merely goes to the weight to be attached to such evidence. He stated further that an identification parade is only needed in certain circumstances, adding that it is not the only way by which it can be proved that the accused person was positively connected with the alleged crime.

Learned counsel strenuously canvassed this issue, citing in support, the following cases, State v  Muhammad (2019) LPELR- 48122 (SC); Afolalu v The State (2010) LPELR-187 (SC); Famuyiwa v The State (2017) LPELR- 43836 (SC); Otti v The State (1993) LPELR-2826 (SC); Pius v The State (2016) LPELR-40657 (SC); Eyisi and Ors v The State (2000) LPELR- 1186 (SC). He therefore, urged this Court to dismiss the entirety of this appeal and affirm the decision of the lower Court.

RESOLUTION OF THE ISSUE I shall begin the resolution of the arguments by considering issue two first. It is well-known that, in criminal trials, an alleged offence must be proved beyond reasonable doubt, Kofi v Queen (1955) WACA 648; Bode v COP (1970) NMLR 145, 150; Nwaturuocha v State (2011) 6 NWLR (pt. 1242) 170. This does not mean “proof beyond all doubt” or “proof to the hilt”.

The Prosecution does not require a magic wand in order to attain this standard of proof. ​What the Prosecution is required to do is, simply, to put forth to the Court, evidence so strong, convincing and compelling, such that a reasonable person of ordinary prudence, after the entire consideration of all the evidence, leaves his mind in a condition that he cannot say he felt an abiding conviction, to a moral certainty, of the truth of the charge, Basil Akalezi v State (1993) 2 NWLR (pt 273) 1, 13, paragraphs C-D; Okeke v State (1995) 4 NWLR (pt. 392) 676; Akinyemi v State (1999) 6 NWLR (pt. 607) 499; Osetola v State (2012) 17 NWLR (pt. 1329) 251.

This burden of proof rests primarily on the Prosecution and is not relieved of this burden simply because an accused person admitted to the commission of the offence in his statement to the Police, Alonge v IGP (1959) 5 SCNLR 516.

The appellant, in the instant case, was charged with four offences, conspiracy to commit an offence, armed robbery and attempted armed robbery. They all require to be proved beyond reasonable doubt to grant a conviction on any or all of the offences.

In the process of establishing the guilt of an accused person, the prosecution has a duty to prove all the essential ingredients of the offences as contained in the charge, While discharging this duty, vital witnesses must be called to testify during the proceedings. ​Before a trial Court can arrive at a conclusion that an offence has been committed by the accused person, the Court must look out for the ingredients of the offence and ascertain critically that the acts of the accused person were within the confines of the particulars of the offence charged, Amadi v State (1993) 8 NWLR (pt. 314) 644.

Count 1 on the Information relates to the offence of Conspiracy. Conspiracy, as an offence, is the agreement of two or more persons to do or cause to be done an illegal act or legal act by illegal means. This Court has held in a plethora of cases that a crime of conspiracy is distinct from the crime contemplated by the conspiracy.

The gist of the offence of conspiracy, therefore, lies not in the doing of the act or the purpose for which the conspiracy is formed, but in forming of the scheme or agreement between the parties, State v Salawu (2011) LPELR-8252 (SC); (2011) 18 NWLR (pt. 1279) 580; Oloye v State (2018) LPELR-44775 (SC); Gabriel Ogogovie v State (2016) LPELR-40501 (SC); Kayode v State LPELR-40028 (SC). ​To establish conspiracy, the prosecution must prove the following ingredients: (a) An agreement or confederacy between two or more persons, as one person cannot conspire with himself; (b) That the agreement or confederacy was to carry out an unlawful or illegal act which is an offence; and (c) That in furtherance of the agreement or confederacy, each of the accused persons took part in the commission of the offence.

The findings of the learned trial Judge on the above ingredients are germane. The learned trial Judge found as follows: Simply put, conspiracy means an agreement between two or more persons to commit an unlawful act, in this case, armed robbery. To succeed, the prosecution must prove: a. That there was an agreement or confederacy between the accused persons; b. That in furtherance of the agreement or confederacy, each of the accused took part in the commission of the robbery; c. That the robbery was armed robbery.

See: Adeyemo v The State (2010) LPELR-3622; Njovens v The State (1973) 5 S.C 17; Haruna v The State (1972) 8/9 S.C 174 Again, contrary to the submission of their Learned Counsel, Mr. Akinsola, there is in my view, abundant evidence before this Court, both from the prosecution witnesses and the confessional statements of the accused persons, that the three of them agreed to steal motorcycles with the use of firearms and dangerous weapons.

In the confessional statements of second and third accused persons which I have already referred to, and which I believe to be true, and voluntary, they admitted their agreement to rob with arms and dangerous weapons. They also admitted that it was the first accused who procured the gun they were using for them. First accused person in both his confessional statements at Obantoko Police Station and the Sate CID, confessed that he was the one who gave the gun to be used for the operations to the third accused. He even stated the source of the gun.

Although he attempted to deny the voluntariness of his statement at Obantoko Police Station, during the trial within trial he stated that he never made the statement at all, not that he made it involuntarily. In light of that, the trial within trial was, by agreement of both Counsel, discontinued, and the statement admitted.

However, his further statements at the state C.I.D, were tendered and admitted without objection from him or his Counsel, as Exhibits 5,6 and 6A, and in these, he also confessed that he gave a gun to the third accused person for the purpose of carrying out robbery operations. I reiterate that I believe the confessional statements of the accused persons, to have been made voluntarily and without any inducement.

In my view, they pass the test of truth laid down in Kanu v King (1952) 14 WACA 30 and followed in several other cases, and are entitled to be relied upon by this Court with considerable weight. The law is settled that the Court can convict solely on the confession of an accused voluntarily made. See: Adesina v The State (2012) 14 NWLR (Pt. 1321) 429. Having carefully examined all the facts in evidence, I am satisfied, that the prosecution has proved beyond reasonable doubt, all the necessary ingredients of conspiracy to commit armed robbery against the first, second and third accused persons.

I find each of them guilty as charged in Count 1 of the Information. The lower Court did well by affirming the position of the trial Court. Quite apart from the trial Court’s findings, it is necessary to state here, for the sake of clarity, that to succeed on Count 1, it need not be actual agreement. It is trite law that in a charge for conspiracy, proof of actual agreement is not always easy to come by,Yakubu v State (2014) 8 NWLR (pt. 1408) 111. However, once it is clear that the accused persons had knowledge of the scheme, the offence is established.

It is not necessary for the conspirators to know each other and they need not be seen together coming out from the same place at the same time, Njovens v The State (1973) 5 SC 17; (1973) LPELR- 2042 (SC); Adejobi v The State (2011) 12 NWLR (pt. 1261) 347. The evidence of a vital witness, if called by the Prosecution, settles this matter once and for all, Ochiba v State (2011) LPELR – 8245 (SC) 37; Omogodo v State (1981) 5 SC 5; Onah v The State (1985) 3 NWLR (pt 12) 236; Shurumo v State (2010) LPELR -3069 (SC) 13.

​At this juncture, I refer to a part of PW1’s testimony where he stated inter alia: I know the accused persons. On the 27th May, 2012, on Sunday at about 7pm, I rode my Okada and went to Fajol junction. I saw the second accused person (appellant in this case); he asked me to take him to Oloruntedo and said, I would also pick somebody else along the way and he asked me what my fee would be. I said N100, and that if I would also take another person, then I would charge N150. But he pleaded with me to collect N100, and I agreed. I carried him and we started going.

We got to a point where he asked me to also pick another person which I did, and we proceeded. The person I picked is the present third accused person…

Another general principle of law is that an accused person can be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration.

In the instant case, the appellant’s attitudinal dispositions and actions along with the other accused persons, as described by PW1, established the fact that there was a pre-conceived plan between them to execute the act of armed robbery on the said day of the incident. They need not have been picked up at the same place or at the same time to show that there was common intention to prosecute the unlawful purpose, Adesujo Akinkunmi and Ors v State (1987) LPELR – 347 (SC); Okosi v State (1989) ANLR 170; D. A. Guobadia, Criminal Justice Administration, Vol. 1 (Lagos: NIALS, 2008) 464 – 465.

With the above scenario in mind, I am of the firm view that the appellant was rightly convicted for the offence of conspiracy. I shall now turn my attention to the armed robbery charge for which the appellant stands convicted and sentenced to death. As regards Count 2, the ingredients necessary to prove the offence of armed robbery are set out thus: (a) That there was a robbery or series of robberies; (b) That the said robbery was an armed robbery; and (c) That the appellant was one of those who took part in the robbery/armed robbery.

Suberu v The State (2010) 8 NWLR (pt 1197) 586; Alabi v The State (1993) 7 NWLR (pt 397) 551; Nwachukwu v The State (1985) 1 NWLR (pt 11) 218. Where the Prosecution fails to establish all the essential ingredients of the offence charged, its case will collapse like a pack of cards,Nwachukwu v State (1985) 3 NWLR (pt.11) 218; Bozin v State (1985) 2 NWLR (pt.8) 465; Suberu v State (2010) 8 NWLR (pt. 1197) 586; Oyebola v State (2008) All FWLR (pt. 402) 1175.

What makes an offence armed robbery is the use of firearms or offensive weapons. What then constitutes firearms or offensive weapons under Nigerian criminal law jurisprudence?

Section 403B of the Criminal Code Act defines “firearms” to include any canon, gun, flint-lock gun, revolver, pistol explosive or ammunition or other firearms, whether whole or in detached pieces; while “offensive weapon” means any article apart from a firearm made or adopted for use for causing injury to the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, metal, glass or stone dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.

The proof of the offence also comprises proof that property has been fraudulently taken via assault or by instilling fear of life or by inflicting bodily harm on the victim. It may be proved by both direct and circumstantial evidence, Osuagwu v State (2016) NWLR (pt. 1537) 31. The experience of fear and intimidation of the victim is very important.

The intimidation or constructive force includes all other means of administration of force or menace by which the victim is put in fear, sufficient to sustain at the material time, free exercise of his will power to make it awfully difficult or nearly impossible for him to offer any resistance to anyone taking his property, Aruna v State (1990) 6 NWLR (pt. 155) 125.

It will be unduly wearisome to restate the testimonies of PW1 and PW2 which point to the establishment beyond reasonable doubt that there was an armed robbery incident on the 27th of May, 2012, as this has already been set by the lower Court. On this, I refer to pages 253-257 of the Record of Appeal. Three weapons that were identified by the Prosecution witnesses include: a gun, a cutlass/machete and a bottle, all of which fall within the meaning of firearm and offensive weapons under Section 403B of the Criminal Code Act.

A critical examination of the testimonies on oath of PW1 and PW2 does not reveal the contradictions so material to fault the Prosecution’s case, as the appellant alleges. Both witnesses are consistent on the fact of the occurrence of the armed robbery; that the robbers were armed and that the appellant herein, was one of the robbers.

PW5, who was the officer on duty on the day of the incident, also testified thus: On 28th May, 2012, I was on duty at Obantoko Division when one Segun Kayode (PW1) came to report that two young men dispossessed him of his Bajaj motorcycle after inflicting injury on his head. The case was incidented and referred to my Section for investigation. The said Segun Kayode volunteered English Language and later signed it after it was read over to him. In that statement, he said he could identify the two men who dispossessed him of his motorcycle if he sees them.

Myself and other team members visited the scene of the crime.

​PW1 positively identified the appellant as one of the robbers that attacked him. PW2 also confirmed that PW1 identified the robbers in his presence when they were caught on the 1st day of June, 2012. Their evidence was not demolished by cross-examination. They remain unshaken under cross-examination over these facts as well as how the appellant was arrested in the vicinity a week after the armed robbery incident.

Learned counsel for the appellant made a complaint about the identification of the appellant. On this matter, I endorse respondent’s submission that an identification parade is not the only way by which it can be proved that the appellant was positively connected with the alleged crime, and most certainly not necessary in the instant case.

As this Court held inAfolalu v The State (2010) 16 NWLR (pt. 1220) 584, 616, paras A-C: Identification parade is not a sine qua non to a conviction for a crime alleged, it is only essential in the following circumstances: (a) Where the victim did not know the accused (person) before and the 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 circumstances, might not have had the full opportunity of observing the features of the accused (person).

The decisions on this point are actually legion. Only a handful will be cited here, Khaleel v State (1997) 8 NWLR (pt.516) 237; Otti v State (1993) 4 NWLR (pt.290) 675; Adebayo v State (2014) LPELR-22988 (SC); Alufohai v State (2014) LPELR-24215 (SC), (2015) 3 NWLR (pt. 1445) 172; Opeke v State (2021) 1 NWLR (pt. 1758) 570. ​In the instant case, an eyewitness, PW1, had both contact and interaction with the appellant and the other accused persons for quite a reasonable time during the commission of the offence.

The appellant himself, by his confessions in exhibits 2, 2A and 7, fixed himself at the scene of the crime on the day of the incident. The requirement of a formal identification parade is therefore superfluous as rightly posited by both lower Courts.

The evidence adduced by the prosecution witnesses pertaining to the three ingredients of the offence of armed robbery is so probable and compelling that any reasonable Court or tribunal can rely on same to convict. Besides all these established facts, appellant’s confessional statements, exhibits 2, 2A and 7 still linger. The confession is a direct, positive and unequivocal admission by the appellant that he was indeed one of the robbers that struck on the 27th day of May, 2012.

He also admitted therein to having been in possession of a U.T.C knife which he used to strike PW1 while the third accused person was holding a bottle. In Saidu v State (1982) 4 SC 41, this Court held that a confession can support a conviction if proved to be made and properly tendered and admitted in evidence.

​It is not a requirement for the Prosecution to produce evidence of the firearm or offensive weapon used by the accused person(s) at the time of the commission of the robbery. It is sufficient if the prosecution establishes that the accused person was armed with such weapon or was in the company of any person so armed at the time of commission of the offence.

There is no principle of law requiring that the weapon used be tendered in order to establish the guilt of the accused person, Olayinka v State (2007) 9 NWLR (pt. 1040) 561; Attah v State (2009) 15 NWLR (pt.1164) 284,303; Garba v State 6 NWLR (pt.661) 378, 388.

As regards Count 3, my position on Count 1 remains the same. Count 4 was for attempted armed robbery.

To succeed in proof of a charge for attempted armed robbery, the Prosecution must prove the following ingredients: (a) That there was an attempt to rob by the accused person but he was stopped in the process or he attempted to abet the commission of the offence; (b) That the accused was armed or in the company of a person who was armed; and (c) That the accused person in an attempt did some act of an ambiguous kind, directly towards the commission of the offence charged, Osung v State (2012) 18 NWLR (pt. 1332) 256; Tope v State (2019) 15 NWLR (pt. 1695) 289.

​In the instant case, the evidence of PW2 and PW3 fixed the appellant at the scene of the crime. PW2 gave account that on the 1st day of June, 2012, at about 7 a.m., the appellant and the third accused person attempted an armed robbery operation in his estate where he is a well-known resident. It was the shouts of “thief, thief” that had interrupted their planned operation. They immediately jumped a fence and ran into a bush.

PW2 also stated that they were captured in the bush with a pistol and two bullets in their possession. These were tendered as exhibits 11 and 11A. PW3, being the Chief Security Officer of the estate, also corroborated PW2’s testimony and also identified the appellant as one of the robbers whom he had apprehended at the scene of the crime. PW4, being the owner of the motorcycle, gave account of how he had received a distress call of this incident that the appellant and third accused person attempted to rob one Haruna Akinwande of his motorcycle.

This incident was also admitted in detail by the appellant and the third accused person, in their confessional statements.

With the above scenario in mind, it is clear that the findings of both lower Courts cannot be faulted. The concurrent findings of both lower Courts were rooted in credible evidence led by the Prosecution and cannot be faulted, Afolalu v State (2010) 6 -7 MJSC 187; Mbang v The State (supra); Audu v The State (2003) FWLR (pt 53) 325.

Without hesitation, I therefore hold that the offences of conspiracy to commit armed robbery and armed robbery and attempted armed robbery were established by the Prosecution, beyond reasonable doubt. The case of the appellant is simply the case of a drowning man clutching at every straw to avoid being drowned.

The resultant effect of all that I have posited here is that the two issues formulated for the determination of this appeal are resolved against the appellant. I find no merit in this appeal as would justify me to interfere with the decision of the Lower Court.

Appeal dismissed. I hereby enter an order affirming the judgment of the lower Court which had earlier affirmed the judgment of the trial Court. In all, the two judgments are hereby further reaffirmed.

​MUSA

DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother CHIMA CENTUS NWEZE, JSC just delivered. I agree with the reasoning and conclusion reached therein that the appeal lacks merit.

Be it emphasized that this appeal is one against the concurrent findings of appellant’s guilt by the two Courts’ below. Both Courts have found the appellant guilty of conspiracy to commit armed robbery and attempted armed robbery contrary to Sections 6(b), 1(2) (A) and 2(2)(a) of the Robbery and Firearms (Special Provisions) Act Laws of the Federation 2004.

Appellant’s contention is that the lower Court is wrong to have affirmed his conviction and sentence by the trial Court for the two offences. I agree with learned respondent’s counsel that appellant cannot just be right.

​Beyond appellant’s confessional statement which was tendered and admitted without objection, the trial Court manifestly relies on the evidence of PW1 and PW 2 that identify and link the appellant to the offences. The trial Court which saw, observed the disposition of the witnesses in the course of testifying and subsequently accepted their evidence as credible is best placed to evaluate and ascribe probative value to the evidence in making relevant findings. Except where the findings are perverse, the appellate Court must respect them. In this regard the appellate Court is handicapped.

In the case at hand, notwithstanding appellant’s effort to resile from his confessional statement which both Courts find to be true, the further evidence of PWI and PWII that inextricably link the appellant to the two offences renders his contention that he has been wrongly convicted unavailing. The concurrent findings of the two lower Courts that evolve from the evidence on record and for that reason not perverse must prevail. See ATOLAGBE V. SHORUN (1985) LPELR – 592 (SC) and UGBOJI V. STATE (2017) LPELR – 43427 (SC).

It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I hereby dismiss the unmeritorious appeal. The concurrent conviction and sentence of the appellant is hereby further affirmed.

​UWANI

MUSA ABBA AJI, J.S.C.: The Appellant with another was charged on a four-count charge of conspiracy to commit armed robbery, armed robbery and attempted armed robbery contrary to Sections 6 (b), 1 (2)(a) and 2 (2)(a) of the Robbery and Firearms (Special Provisions) Act, LFN, 2004. The judgment of the trial Court sentencing the Appellant to death by hanging was affirmed by the lower Court, hence this appeal by the Appellant to this Honourable Court, wherein he distilled 4 issues for determination.

Nevertheless, the 2 issues formulated by the Respondent are apt and comprehensive to cover the Appellant’s 4 issues; which border on: 1. Whether the lower Court was right in affirming the trial Court’s acceptance of and reliance on the Appellant’s confessional statements. 2. Whether the lower Court was right in affirming the trial Court’s conviction and sentence of the Appellant.

It is indisputably on record that the Appellant made Exhibits 2, 2A and 7 as his confessional statements to the offences charged and never objected to their admissibility when tendered, although he attempted to retract same to prove his innocence.

Nevertheless, the trial Court putting all caution together convicted and sentenced him as affirmed by the lower Court. ​The retraction of the confessional statement by an accused person in his evidence on oath during the trial is of no moment as it does not adversely affect the situation once the Court is satisfied as to its truth and it can rely solely on the confessional statement to ground a conviction. See per Ikechi Francis Ogbuagu, JSC, in NWACHUKWU V. STATE (2007) LPELR-8075(SC) (PP. 35-36, PARAS. D-A).

In the stark ignorance and foolhardiness of some offenders or accused persons doctored sometimes by their lawyers, they have the premonition in their criminal trial that it is wisdom and ingenuity for exculpation or defence to retract a statement once made, confessed or admitted. I must categorically state that whether a confessional statement is retracted or not, the Court is not an empty or resounding cymbal that responds to a sound once beaten.

Whether from the Prosecution or the Defence, every case must be considered and that is the weight the Court gives to whatever is garbaged in and garbaged out by either party before it. Besides, where the accused person has been squarely fixed to a crime, as in the instant appeal, whereas the Appellant was fully identified as one of the armed robbers by both PW1 and PW2, his confessional statement must bow, be subservient and subordinate to eyewitness or direct evidence. Direct evidence establishes a fact without making any inference to connect the evidence to the fact.

Thus, direct evidence proves or disproves a fact directly. See PAUL V. STATE (2019) LPELR-47386(SC) (PP. 27-28 PARAS. B). Direct evidence as that of PW1 and PW2 need no presumption, inference, collaboration or confirmation, except it is not a direct evidence properly so called. A confessional statement MAY need some collaboration or presumption to pass the test but not so with a direct evidence. Thus, the confessional statement of the Appellant in the face of the direct evidence of PW1 and PW2 cannot be worthy of consideration whether retracted or not.

I therefore endorse the lead judgment of my learned brother, Chima Centus Nweze, JSC, that the Appellant’s appeal be dismissed and same is hereby dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my brother, CHIMA CENTUS NWEZE JSC and I agree with the reasoning and conclusion that this appeal is without merit and should be dismissed.

​This is an appeal against concurrent findings of facts and conclusions based on laws of the trial Court and the Court of Appeal. The Appellant and three other Defendants had been charged with conspiracy and armed robbery contrary to Sections 6 (b), 1(2) (a) and 2 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation of Nigeria, 2004.

The confessional statement of the four Defendants were tendered at trial. The Appellant confessed in Exhibit 2, 2A and Exhibit 7. No attempt was made at the appropriate time by the Appellant to impugn the voluntariness of the confessional statement he made. The Appellant was caught practically on the spot after the attempt to rob the victim of his motor cycle. The victim - P.W.1, identified the passengers he carried and who attacked him and tried to rob him of his motorcycle.

He had raised alarm which attracted the attention of passersby who chased the Appellant and the other assailants who were later caught near the scene of crime.

​The law is that this Court would not unless exceptional circumstances are shown, disturb the concurrent finds of fact and legal conclusions of the two lower Courts. The findings must be shown to have been arrived at injudicially in a perverse manner. The findings must be shown to be unsupported by admissible evidence and there must be an inherent violation of the rights to fair hearing of the Appellant that on the face of the record has occasioned gross miscarriage of justice and needs to be corrected by this Court. See 1. EGWUMI V. STATE (2013) 13 NWLR Pt. 1372 Pg. 525 at 556 – 557, paras.

E- A 2. IFEANYI V. FRN (2018) 12 NWLR Pt. 1632 Pg. 164 at 195, paras. G – H. 3. AFUAPE V. STATE (2020) 17 NWLR Pt. 1754 Pg. 381 at 416, paras. C – E; 417, paras. A- B. 4. IDAM V. FRN (2020) 12 NWLR Pt. 1737 Pg. 1 at 13, paras. E – F. 5. AMEH V. STATE (2018) 12 NWLR Pt. 1632 Pg. 99 at 125, paras. G – H.

The evidence of a single eyewitness and victim of the crime in the circumstances of this case was enough to ground the conviction of the Appellant. I affirm the concurrent findings of the two lower Courts. Appeal Dismissed.

ADAMU JAURO, J.S.C.: I was privileged to read in draft the lead judgment of my learned brother, Chima Centus Nweze, JSC just delivered. I am in agreement with the reasoning and the conclusion contained therein.

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It is now settled that the appropriate time to object to the admissibility of a confessional statement is at the point when the Prosecution seeks to tender same. Any objection raised to the admissibility of an extrajudicial confessional statement subsequent to its tendering and admission in evidence will be considered an afterthought. See BASSEY V. STATE (2019) LPELR – 46910 (SC); MUHAMMAD V. STATE (2017) LPELR – 42098 (SC); ODEH V. FRN (2008) LPELR – 2205(SC). In the instant case, the Appellant’s confessional statement, Exhibits 2, 2A and 7 were tendered without objection.

The testimony of the appellant suggesting that he made the statement because he was tortured amounts to nothing more than afterthought.

When found to have been voluntarily made, a confessional statement is enough to ground the conviction of an accused person. See FULANI M. V. STATE (2018) LPELR – 45195 (SC); KAMILA V. STATE (2018) LPELR – 43603 (SC); JOHN V. STATE (2017) LPELR - 48039 (SC). This notwithstanding, there is abundant evidence on record which corroborated the Appellant’s confessional statements.

For instance, it was in evidence that the motorcycle stolen from PW 1 was recovered from the 4th accused person in Ibadan, PW1 testified that one of his assailants injured him with a cutlass and the other broke a bottle on his head. These pieces of evidence are corroborative of the events narrated by the Appellant in his confessional statement.

​On the whole, I too find no merit in this appeal. Same is equally dismissed. The conviction and sentence of the Appellant by the trial Court which was affirmed by the lower Court is hereby further affirmed.

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the Court of Appeal sitting at Ado Ekiti, referred to as the lower Court, delivered on the 31st day of March 2014.

The Appellant was charged at the High Court of Ekiti State alongside one other, on a three count charge of conspiracy, armed robbery and willful damage to property under the Robbery and Fire Arms Act Cap 398 Vol XXII Laws of the Federation of Nigeria 1990 as amended.

The Appellant pleaded not guilty to the charge, which are hereunder reproduced as follows: COUNT 1 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court did conspire with each another to commit armed robbery and thereby committed an offence contrary to and punishable under Section 5b of the Robbery and Firearms Special Provisions Act Cap 398 vol XXII Laws of the Federation of Nigeria 1990 as amended.

COUNT 2 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and other dangerous weapon did rob one pastor Ajayi Olayinka 11,000 naira [eleven thousand naira] and one Nokia handset and thereby committed an offence punishable under Section one Section 2a of Robbery and Firearms Special Provision Act, Cap 398 vol XXII, Laws of the Federation of Nigeria 1990 as amended.

COUNT 3 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti within the jurisdiction of this honourable Court while armed with cutlasses and in the process of robbing did willfully damage one Mazda 626 millennium with registration number LG49TUN property of Otun local government and thereby committed an offence contrary to and punishable under Section 481 of the Criminal Laws of Ondo State 1978 as applicable to Ekiti state.

As highlighted earlier, each of the two accused persons pleaded not guilty to the count and the matter proceeded to trial. The Respondent called in 6 witnesses and tendered 12 exhibits namely Exhibits A, B, C, C1, D, D1, E, E1, F, F1, G, and G1 in pages 66-68 of the Record. While the Respondent called in its 5th witness, the office of the Attorney General of Ekiti State substituted the charge with no objection from the accused persons.

The substituted charge reads as follows: COUNT 1 That you Adebayo Rufus and Bamidele Rasheed on or about the 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did conspire together to commit felony to wit; armed robbery and thereby committed an offence contrary to Section 6[b] of the Robbery and Firearms [Special Provisions] Act Cap R11, Laws of the Federation of Nigeria 2004. COUNT 2 That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September, 2008 at Otun-Ekiti, Ekiti State of Nigeria while armed with offensive weapons to wit: cutlass and knife robbed one Mrs.

Ajayi Kofoworola of the sum of One Thousand Five Hundred Naira [N1,500] and thereby committed on offence contrary to Section 1[2] [a] of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.

COUNT 3 That you Adebayo Rufus and Bamidele Rasheed on or about 29th day of September 2008 at Otun-Ekiti, Ekiti State of Nigeria did willfully damage one Mazda 626 millennium car with Registration Number LG 49 TUN, official car of one Honourable Ajayi Olayinka and thereby committed an offence contrary to Section 451 of the Criminal Code volume II Cap 30 Laws of Ondo State 1978 as applicable to Ekiti State.

Immediately after substitution, the trial continued and PW6 gave his evidence. See pages 65 to 69 of the Record. The Appellant and the other accused person each testified solely in his defense and called no other witness.

At the end of trial, the trial Court convicted the accused persons as charged and they were sentenced to life imprisonment and 6 months imprisonment.

At Page 97 of the Record, the trial Court, per ADEYEYE, J. held as follows: “I therefore find each of the accused persons guilty of conspiracy, attempted robbery and unlawful damage. Each accused is accordingly convicted… Each of the accused persons is sentenced to life imprisonment in respect of the charge of conspiracy and attempted robbery. Each of the accused persons is sentenced to six months imprisonment in respect of Count 3 of the charge, the sentences shall run concurrently.”

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal Ado-Ekiti Division. The Court below, in a unanimous decision, dismissed the appeal. At pages 210 to 212, the Court of Appeal held inter alia thus: I have painstakingly perused the record of appeal and the evidence contained therein and more particularly the testimonies of PW2, PW3 and PW5 coupled with the submission of both learned counsels for the parties thereon.

In this vein, I have no doubt that the findings made by the learned trial Judge in this regard were borne out of pieces of evidence contained in the record of appeal Indeed I am unable to detect any segment or vestige of doubt from the evidence on the printed record placed before us.

Accordingly, in the absence of compelling, showing, indicating and incorrect evaluation/erroneous appraisal of facts and wrong conclusions, I am thus obliged to show utmost restraint and refuse to accede to any invitation or succumb to any temptation towards interfering with duly considered findings as amply demonstrated above made by the learned trial Judge in the instant case.

After the giving of exhaustive considerations to the evidence of requisite witnesses placed before him…in the premise of all that, I have stated above and having resolved all issues adopted for the termination in this appeal against the appellant, I have no valid reason to upturn or jettison the conviction of and sentence imposed on the appellant by the earned trial Judge in this case. The appeal is devoid of any positivity, it is accordingly dismissed by me, and the judgment of the trial Court is affirmed.

The Appellant, still dissatisfied, filed an appeal to this Court via a Notice of Appeal filed on the 6th day of June 2014. The said Notice of Appeal contains seven grounds.

In accordance with the practice and accepted procedures of the Supreme Court, parties filed and exchanged briefs. Counsel to the Appellant Chief R.O BALOGUN filed his brief on the 23rd day of March 2016 while counsel to the Respondent, the Honourable Attorney General of Ekiti State OLAWALE FAPOHUNDA Esq. settled the Respondent’s brief on the 25th day of November 2019.

In the Appellant’s brief of argument, the following three issues were distilled for this Court’s determination. They are: 1. Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. ExWing Commander James. 2.

Whether the Court of Appeal was not wrong when their Lordships held that the defence of aibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing. 3.

Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt.

For the Respondent, three issues were also formulated for determination. They read as follows: 1. Whether the Court of Appeal was right in upholding the decision of the trial Court in convicting and sentencing the Appellant for the offence of conspiracy, attempted armed robbery and wilful and unlawful damage based on the substituted charge No. HAD/29C/2012, filed on 23/7/2012 without commencing the trial de novo? 2. Whether the defence of alibi raised by the Appellant can exculpate him in the instant case? 3.

Whether the identity of the Appellant as a robber was established by the Respondent and thus proved the case beyond reasonable doubt against him?

The three issues raised by Counsel on both sides are the same in purport, though differently couched. The issues as formulated by the Appellant are adopted in the determination of this appeal. Issues two and three are taken together.

ISSUE ONE Whether the Court of Appeal was right by affirming the decision of the trial Court that withdrawal of a charge and filing a new one after hearing has commenced is akin to an amendment and will not warrant trial de novo; placing reliance on the provisions of Section 162 and 163 of the Criminal Procedure Law of Ekiti State and the case of Nigeria Air Force V. Ex-Wing Commander James.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

It is submitted for the Appellant that the Respondent having substituted the original charge upon which the Appellant was arraigned and the charge struck out, the charge ceases to exist. According to learned counsel for the Appellant, the plea of the Appellant, having been taken and hearing commenced, substitution of the charge cannot be validly done.

It is his view that all five witnesses called before the charge was substituted should be discountenanced by this Court and the matter ought to have commenced de novo on the new charge.

Learned counsel for the Appellant invited this Court’s attention to pages 59-61 of the Record, which clearly captured what transpired on the 3rd day of October, 2012, when the Respondent made an oral application to withdraw the original charge and substituted it with the new charge.

It is his opinion that the trial Court did not make nor grant any order for amendment of the original charge, since the Respondent never prayed for such an order in accordance with Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State. According to him, the Respondent only made an oral application for the substitution of the original charge, with a new one.

Learned counsel for the Appellant posited that the provisions of Section 163 of the Criminal Procedure Law Cap C17 Laws of Ekiti State relied upon by the trial Court are not relevant and ought not to have been applied. His view is that Section 163 cannot be read in isolation, but must be read in concert with Sections 162,164 and 165 of the Criminal Procedure Law, supra. He relied on the case of PRINCE v. STATE (2002) 12 S.C (PT 1) 144-145

It is the view of learned counsel for the Appellant that the cases of F.R.N v. ADEWUNMI and NIGERIAN AIR FORCE v EX-WING COMMANDER L.D JAMES (2002) 18 NWLR (Pt 798) 295-332 relied upon by the trial Court, and affirmed by the Court below, are not apposite and are distinguishable from the instant case.

He urged this Court to hold that the evidence and testimonies of PW1-PW5, that were called on the basis of the original charge ought to be struck out and discountenanced; and resolve this issue in favour of the Appellant.

​In response to the above, it is the submission of learned counsel for the Respondent that Section 163 of the Criminal Procedure Law of Ekiti State which is im pari materia with Sections 154 and 155 of the Ekiti State Administration of Criminal Justice Law, 2014, empowers the Court to alter, amend, or add any charge in any criminal proceedings before it. He argued that the amendment may be in the form of addition, deletion, or even complete substitution and placed reliance on these cases: UKET v. FRN (2008) ALL FWLR (PT 411) 923; NIGERIA AIR FORCE v.

JAMES (2003) FWLR (PT 143) 257 STATE v OLATUNJI (2003) FWLR (Pt 155).

Learned counsel for the Respondent posited that the Appellant was duly represented in Court when the original charge was substituted and he did not object to the substitution.

He posited that the trial of an accused person cannot be vitiated on grounds of irregularity, except it occasioned a miscarriage of justice, which was not the case, in the instant appeal. He commended this Court to the following cases: AKPA V THE STATE (2008) ALL FWLR (PT 420) 644, UDOSEN V THE STATE (2007) ALL FWLR (Pt 356) 669.

​This Court is urged to discountenance the arguments proffered on behalf of the Appellant on this issue, and resolve same against him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Perhaps it is apt to stress here that learned counsel on both sides are ad idem that the Respondent can amend, alter, or substitute a charge. What is in issue here is the effect of such alteration on the Appellant’s case.

It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused. ​The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof.

The provisions of the Section are as follows:- “(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.” Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential.

Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v.

STATE (1995) LPELR 451 SC. ​Relating the above quoted authorities to the case at hand, the contention of the Appellant herein is that the Respondent, having withdrawn the original charge upon which the Appellant was arraigned and the original charge struck out, the charge against the Appellant ceases to exist and the trial of the Appellant ought to be started de novo, based on the new charge, and the evidence of the five witnesses taken and evidence given prior to the substitution ought to be struck out alongside the original charge.

I must straight away state that this position taken by learned counsel for the Appellant, does not represent the law, as quoted above. In the case of NIGERIAN AIR FORCE v. EX WING COMMANDER LD JAMES (SUPRA) this Court had this to say; Therefore substitution will have the same meaning and effect with alteration and according to Section 164 of the said act, where a charge or count is altered, all that is required to be done is to read the new charge to the accused and record his/her plea there too. The proceedings are deemed to be continued and not disturbed as a result of the alteration.

In OGUDO v. THE STATE (2011) LPELR 860 SC, this Court gave the procedure to be taken when a charge is amended or substituted as follows: The proper procedure to take when a charge is amended is for the Court to read and explain to the accused every allegation or addition to the charge and to call upon the accused to make a fresh plea and to say whether he was ready to be tried on the amended charge and/or to recall all witnesses who may have given evidence and to ask the prosecution and accused if they wish to examine or cross-examine them.

I have carefully read the proceedings of the trial Court on the 3rd day of October 2012. The plea of the Appellant was made after the substituted charge had been read and explained to him (Appellant) in English and Yoruba. It was not the case of the Appellant that he did not understand Yoruba or that the substituted charge was not read and explained to him in Yoruba and English. Above all, the Appellant was represented by a learned counsel who appeared for him at the material time. Counsel for the Appellant C.O.

Omokhafe appeared on behalf of the Appellant and raised no objection to the substitution of the charge. The substituted charge was read to the Appellant who pleaded not guilty. The learned trial Judge gave direction for the matter to proceed. The Appellant did not make any application either by himself or his counsel to recall any of the prosecution’s witness. The appropriate action to be taken at the trial Court was for the matter to proceed which the learned trial Judge did.

It must be noted that the real purpose of the provisions of Sections 162, 163, 164, 165 and any other Sections of the Criminal Procedure Act/Law relating to taking of plea of an accused on a charge or amended/substituted charge is to enable the accused to understand the nature of the charge or amended or substituted charge preferred against him. That was the fundamental or essential requirement or thing. If there is no miscarriage of justice, there is a presumption that the trial of the Appellant was regular.

It should be noted, in the present connection, that while Sections 164 and 165 of the Criminal Procedure Law are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163, it is clearly never the intention of the Act/Law that these Sections should provide an accused with a gratuitous escape route to freedom in the face of overwhelming evidence.

​In view of the foregoing, I find no merit in the Appellant’s submission on this issue and same resolved against him.

ISSUE TWO Whether the Court of Appeal was not wrong when their Lordships held that the defence of alibi, promptly raised by the Appellant and not investigated by the Prosecution will not avail the Appellant, when the evidence of PW1 and PW4 that purportedly fixed the Appellant to the scene of the crime was not credible, cogent and convincing.

ISSUE THREE Whether the Court of Appeal was right by upholding the conviction and sentence of the Appellant for the offences of conspiracy, attempted robbery and wilful damage to Mazda 626 Car, in spite of the frail and unconvincing evidence of identification of the Appellant and when the totality of evidence led is not capable of establishing the offences beyond reasonable doubt. It is the argument of learned counsel for the Appellant that the Appellant promptly raised the defence of alibi upon his arrest, in his extra-judicial statement.

He invited this Court’s attention to Exhibit A, at page 66 of the Record, and submitted that the Appellant’s evidence that he was at his house on the 29th of September 2008, the date of the incident, was not discredited under cross-examination.

Learned counsel for the Appellant opined that the decision of the two lower Courts, that there was overwhelming evidence which fixed the Appellant to the scene of the crime, and therefore there was no need to investigate the alibi, occasioned a miscarriage of justice.

He contended that the evidence of PW1 and PW4 did not sufficiently pin the Appellant to the scene of the offence. According to him, having regard to the time the incident occurred, coupled with the fact that there was no light, (the incident having purportedly occurred at about 1.00 a.m. – 2.00 a.m.), it is absolutely impossible for the witness to recognise the Appellant by mere flashing his torchlight outside.

Finally he submitted that in the absence of any credible evidence adduced to discredit the alibi, the Appellant would inadvertently be exonerated of the charge, and the lower Court erred in affirming the decision of the trial Court, that the Respondent had successfully established all the ingredients of the offence charged.

He relied on this Court’s decision of AYAN V THE STATE (2013) LPELR 20932 SC and urged this Court to resolve these issues in favour of the Appellant.

Arguing in opposition to the above, it is submitted for the Respondent that the learned trial Judge painstakingly evaluated the evidence of PW1 and PW4 which effectively pinned the Appellant to the scene of the crime.

Learned counsel for the Respondent stated that by the evidence of PW1 and PW4, the Appellant was clearly identified by his voice and visual identification during the commission of the crime, which according to him, were some of the established ways of linking a person with the commission of the crime. He relied on the case of EMENEGOR v. STATE (2010) ALL FWLR (PT 511) 884.

He continued by arguing that it is not in all matters that once the defense of alibi is raised, an accused person is completely exculpated from the crime. According to him, if the prosecution can adduce succinct evidence, pinning the accused to the scene of the crime, the defense of alibi will automatically fail. He called in aid, these cases: ATTAH V THE STATE (2010) VOL 30 WRN P1 NWABUEZE AND ORS V THE STATE (1988) 7 SCNJ (PT11) PG248.

​He submitted in conclusion that the Court below properly evaluated all the evidence adduced before coming to the conclusion that the trial Court rightly convicted the Appellant for the offences charged.

This Court is urged to so hold, and resolve these issues against the Appellant.

I have carefully looked at the evidence of PW1 at pages 35 to 37 of the record. Part of the said evidence reproduced reads as follows: “I picked up my torchlight and flashed outside, I saw the first accused person, I then shouted obosco you are the one doing this to me, the first accused person then replied that I should forget about that and open the door for them”… when I entered the room, I saw the face of the second accused person through the window, I started shouting his name again that kokorowa this is not good oo.

The accused person went to where I parked my car and damaged all the glasses and windscreen.”

PW4 also stated as follows: I know the first accused person and obosco and the second accused person as kokorowa. I know them in the town and they are my customers and as such, I can identify them anywhere… they shouted open the door but my husband insisted he will not open the door. They broke the glass of the window and called the name of my husband super open the door”

Looking at the above pieces of evidence, to my understanding, PW1 and PW4 both have a clear understanding as to the identity of the accused persons. What more could be tagged as identity of someone other than his name? At pages 70 and 72 of the Record, the accused persons admitted under cross-examination that they are being called Obosco and Kokoro Ewa respectively. See: UGWU V THE STATE (2020) LPELR-49375 SC, IDIOK V THE STATE (2008) FWLR (PT 421) 797.

​In rejecting the defence of alibi, the Court below observed as follows, at pages 201 to 202 of the Record: “In a situation such as in this case, where an accused is fixed at the scene of crime, the fact that the police/prosecution did not investigate the claim of alibi is very irrelevant as such an investigation would be a complete waste of time, a worthless exercise, which can be likened to a wild goose chase.

It follows therefore, that where an accused is fixed at the scene of crime, which evidence is believed by the learned trial Judge, no reasonable doubt is created for the benefit of the accused if the police failed and/or neglected to investigate a claim of an alleged alibi put up by the defence/accused person. On the issue of identification…it is clear that both PW1 and PW4 recognised and further identified the Appellant as one of the robbers that invaded their residence.

I think it is worth restating, that when an accused person is fixed at the scene of the commission of the crime, the plea of alibi fails and fizzles out as a candle in the wind……..in the case at hand, where the Appellant was duly identified, recognized and fixed at the commission and the locus of the crime by PW1 and PW4, who knew him before the incident, there was no burden to verify the plea of alibi…”

I find this decision of the Court below to be infallible and have no reason to hold otherwise.

An appellant insinuating that he was not at the scene of the crime has the burden to also lead in credible evidence to discredit the prosecution’s case in proving his defense of alibi. The Appellant at page 70 of the record stated that he was at his house at the time of the commission of the offence. There is nothing in the record that supports the Appellant’s alibi or discredits the Prosecution’s firm evidence against him. This Court in the case of IDIOK v THE STATE (supra) had this to say: Once an accused person is fixed at the scene of the crime, his defense of alibi must fail.

The conclusion to which I have come is that I must resolve these two issues against the Appellant,

The concomitant effect of the above is that this appeal is wholly unmeritorious and worthy of dismissal. Same is accordingly dismissed by me.

The decision of the Court of Appeal, Ado Ekiti Division, delivered on the 31st of March 2014 is hereby affirmed.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading a draft copy of the leading judgment just delivered by my learned brother, ABOKI JSC. For the reasons given, I too find no merit in the appeal. Appeal dismissed. The judgment of the Court of Appeal is affirmed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance, the lead judgment of my learned brother ABDU ABOKI JSC just delivered. I adopt the reasoning and conclusion therein as mine in dismissing the unmeritorious appeal.

​HELEN

MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege to read in draft, the judgment just delivered by my learned brother ABDU ABOKI, JSC. I agree that this appeal be dismissed.

I have read the briefs and the Records in this appeal. In this case, there are concurrent findings of fact by the High Court and the Court of Appeal that indeed the Appellant and one other person {co-defendant) well known to the victims committed conspiracy, armed robbery and willful damage to property under the Robbery and Firearms Act Cap 398 Laws of the Federation 1990, as amended. The issues raised by this appeal are settled.

The Appellant’s erroneous contention that after a charge is withdrawn or amended and the original charge is struck out, the charge against the Appellant ceases to exist and the trial should have started de novo based on the new charge is completely misconceived. When a charge is altered, amended or substituted, and the fresh charge is read to the Defendant in the language he understands, and the plea of the defendant is taken, the Court would ask the Defendant whether he intends to recall any prior witnesses who had given evidence.

The Defendant is also allowed to call additional evidence where he so wishes depending on the stage of the prosecution or defence. The trial Court can proceed with the trial after these steps have been taken. See. Ogudo v The State (2011) LPELR 860 SC. FRN v. Adewunmi (2007) LPELR-1273(SC) Nigerian Air Force v. James (2003) FWLR pt.143 pg. 257, Bude v. The State (2016) LPELR-40435 (SC). This Court in FRN v.

Adewunmi was clear regarding the interpretation to be given to the procedure set out in S.164 (4) of the Criminal Procedure Act (same as S. 164 (4) of the Criminal Procedure Law of Ekiti State.

​The Appellant complained that the trial Court did not appreciate the difference between Section 162 of the CPA which talks of framing a new charge. In that case, substitution of a new charge is expected as in this case. However, Section 163 of the CPA talks of alteration or addition to a charge leaving the original charge intact. Complaint that the trial Court and lower Court missed the purport of the distinction between the 2 Sections of the CPA.

Counsel posited that trial Court should have altered/amended under S. 163 rather than substituted under S. 162 after several witnesses had been called. That is mere technicality, there is nothing to show that if there is any mistake, it has caused miscarriage of justice.

The 2nd and 3rd issues are challenging the concurrent findings of fact by the two lower Courts in relation to the identity of the Appellant. The Appellant relied on the alibi that put him in his home with his wife on the night of the incident.

Even though there is no evidence that the police investigated his alibi, and he on the other hand did not call his wife to substantiate his alibi, the evidence of P.W.1 and P.W. 4 was clear and unequivocal that they saw the Defendant, heard his voice, exchanged conversation with him while he and another were robbing them and others and vandalising their property. The witnesses called him by his nickname and he in turn responded. The law is settled that where a defendant’s presence is credibly and unequivocally fixed at the time and place of a crime, his defense of alibi must fail.

See Iheanu-Ekwu Ndukwe v. The State (2009) 2 SCM 147 at 176-177, Oluwasegun Akereyeli v. The State (2015) LPELR -25811 (CA) Victor v. State (2013) LPELR -20749 (SC).

I disagree with the Court of Appeal’s general statement of the law that failure to investigate alibi of accused where there is direct evidence fixing the accused to the scene of crime is irrelevant. In my view, both the evidence of witnesses and the alibi of the accused on oath are substantially oath against oath.

If the alibi is investigated, the outcome of the investigation can be used by the judex to weigh the preponderance of evidence on both sides and after considering the credibility of both witnesses arrive at a finding of fact beyond reasonable doubt one way or another. ​My Lords, every case must be considered on its own facts.

It is quite a different thing where the evidence of identification is faulty, for instance where the Defendant was a complete stranger to the witnesses, or only had a fleeting encounter with the witness, he was not arrested at the scene of crime, a procedurally faulty identification parade was conducted to identify him as the perpetrator of the crime. Added to all or any of the above, the Appellant must have set up an alibi at the earliest opportunity to the police.

In any of the above scenario, the Court may insist that the failure of the police to investigate the alibi has raised doubt in the case of the prosecution and such doubt should be resolved in favour of the Defendant.

I want to say that for the sake of emphasis that even where the police were unable or refused to investigate the alibi of the Defend, acquittal would depend on the overall circumstances of the case. Where there is doubt in the evidence adduced by the prosecution, failure to investigate the alibi to clear any doubt in the defence of the Defendant becomes the final lid in the coffin of whatever case the prosecution intended to make and the prosecution’s case would be buried.

Heavy weather was made on the issue of identification regarding whether the assailant wore masks or not. The fact of whether they wore masks or not in the circumstances of this case does not constitute substantial contradiction. P.W. 2 who said they wore masks was in another house not the same house as P.W.1 on the night of the incident. P.W.5 stated that they were not masked but he could not recognize them also he lived in another house. It is to be noted that several houses were raided. I can find no material contradiction in the case of the prosecution.

The Defendants were well known to their victims.

I am persuaded by the facts of this case that there was absolutely no reasonable doubt in the prosecution’s case. As I said earlier, there are concurrent findings of fact that indeed the Appellant committed the offence for which he was convicted and sentenced. These findings were not arrived at by a perverse route, there is no wrong application of procedural or substantive law which in my view has led to a miscarriage of justice that might cause a reversal of the judgment of the two lower Courts. There is no merit in this appeal.

I affirm the judgment and orders of the Court of Appeal delivered on 31/3/2014 at the Ado Ekiti Division. Appeal Dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Abdu Aboki, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

Judgment

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Katsina State High Court delivered on 5th of October, 2017 in Suit No: KTH/27C/2016. The appellant along with three other accused persons were arraigned before the High Court of Justice Katsina State for the offence of armed robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R 11LFN 2004. They were found guilty and sentenced to 21 years imprisonment.

The case of the respondent against the appellant and the three other convicts was that on 5th of September, 2016 one Gambo Mallam Ya’u (PW1) was robbed by four men armed with sticks, machetes and horns while they were masked. At the trial seven (7) witnesses testified for the respondent and several exhibits were tendered and admitted in evidence, including the statements of the appellant, Exhibits C, D, C1 and D1. The appellant and the three other co-accused persons testified in their own defence.

After hearing the learned trial Judge found them guilty as charged, convicted them and sentenced them to 21 years imprisonment. Being aggrieved by the decision the appellant appealed to this Court vide the original notice of appeal filed on the 5th of March, 2020. On the 24th of February, 2020, the appellant was granted 14 days extension of time to appeal. The appellant filed an amended notice of appeal on 16th of June, 2021 and same was deemed on 27th of September, 2021. The amended notice of appeal contain two (2) grounds of appeal.

At the hearing of this appeal on the 14th of February, 2022, Olujoke Aliyu of counsel adopted the appellant’s brief of argument filed on 16th of June 2021 and deemed on 27th of September 2021. And the reply brief filed on 29th of October, 2021 and deemed on 2nd of November, 2021. Having adopted the two briefs the appellant’s counsel urged the Court to allow the appeal. The respondent’s brief was settled by Omosanya Popoola and it was filed on 27th of September, 2021 and deemed on same date 27th September, 2021.

After adopting the said brief the learned counsel urged the Court to dismiss the appeal.

The appellant distilled a sole issue for determination from the two grounds of appeal, thus: “Whether having regard to the evidence led at the trial, there was reasonable doubt as to the alleged robbery and the appellant’s participation in the same.” The respondent equally distilled a sole issue for determination thus: “Having regard to the facts and circumstances of this case, whether the trial Court did not properly evaluate the material evidence adduced before it when it convicted and sentenced the appellant for the offence of armed robbery.” However an appellate Court is not bound by the issues formulated by the appellant or the respondent.

An appellate Court has the powers to reframe any issue formulated by the parties. Essentially an issue, for determination brings into clear focus and precision the main points involved in the appeal. In this regard I hereby reframe the issue to read thus: “Whether in view of the totality of the evidence before the Court, the prosecution/respondent had proved the offence of armed robbery against the appellant beyond reasonable doubt.” The appellant’s counsel submitted that an accused is presumed innocent until his guilt is proved beyond reasonable doubt.

The prosecution has a burden to establish all the elements of the offence beyond reasonable doubt. The learned counsel relied on the Supreme Court decision in the case of State v. Sani (2018) 9 NWLR (Pt. 1624) 278 at 294 paras G – H where the essential elements for the offence of armed robbery were stated thus: (a) that there was a robbery or series of robberies. (b) that the robbery was carried out with offensive weapons; and (c) that the accused person participated in the robbery.

The learned counsel submitted that the evidence of the prosecution is such that creates reasonable doubt as to the robbery and the participation of the appellant in the robbery. In convicting the appellant the lower Court relied on the retracted confessional statement of the appellant and other defendants. The lower Court sought for evidence outside the confessional statement to corroborate the confession.

The lower Court relied on the exhibits tendered in Court by PW7 the exhibit keeper, which are the weapons allegedly found in the homes of the defendants and which were used in the commission of the crime. The lower Court held thus: “It is on record that PW7 informed the Court how Exhibit A – F2 and M to M2 were recovered from the house and premises of the 1st accused person by means of a search warrant. The discovery of the items especially Exhibits A, C, E1, M1 and M2 go to (strengthen) the evidence of PW1 and PW2 and even the confessional statements of all the accused persons”.

In the light of the above finding that I strongly hold the view that the retraction of DW1 – DW2 are just an afterthought which will not avail them an escape route.” See page 72 of the record. Learned counsel submitted that PW1 and PW2 testified that two men came into their home and robbed PW1. They also testified that they could not identify the said robbers. The identity of the said robbers is crucial to the fact that the defendants charged were the ones that carried out or participated in the said robbery. In the case of Ani v.

State (2009) 16 NWLR (Pt. 1168) 443 at 460, the Supreme Court held that identification of an accused person in the commission of crime is a most serious exercise in the administration of Criminal Justice, as it creates the link between the accused person and the offence. Accordingly, a Court of law cannot speculate that a complainant might have or must have disclosed the person or persons who committed the offence when there is no evidence to draw such a conclusion. Further in Ogbaga v.

The State (2016) LPELR – 40950 (CA), the Court held: “In a criminal charge, the act of the accused person must be tied to the commission of the crime. There must be a nexus between the accused person and the crime purportedly and indeed allegedly committed.” The learned counsel submitted that neither the appellant nor any of the other defendants were arrested at the scene of the crime and the prosecution gave no evidence of where the appellant was arrested.

In attempting to connect the appellant to the alleged robbery the prosecution relied on the alleged confessional statement and the exhibits tendered by PW7, the Exhibit Keeper which were allegedly used by the appellant and the other defendants during the robbery. The exhibits are: 1. 6 Sticks 2. 4 Knives 3. 2 Swords 4. 1 Cutlass with cure head 5. 1 Mask 6. 2 Turbans 7. 2 dark glasses 8. Some charms 9. 1 animal horn 10. Some amount of money (Cash) which was later released to the owner on bond.

The learned counsel submitted that the charge stated that the robbery was committed on the 5th of September, 2016. PW1 and PW2 testified that the armed robbery occurred on 5th of September, 2016. But PW7 the Exhibit Keeper who tendered the exhibits on 1st of February, 2017 he stated as follows: “On 14/8/2016, one Inspector Adamu Musa attached to Anti – Robbery Section of SCID Katsina brought some exhibits in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration.

I registered them and gave them numbers, they are as follows …” From the evidence of PW7 the exhibits were registered on 14/8/2016, it raises a question as to how exhibits that were allegedly used during an armed robbery on 5th September, 2016 could have been registered with the exhibit keeper in August, 2016 about three weeks before the alleged robbery. The exhibits were not connected to the robbery that occurred on 5th September, 2016 yet the trial Court found that the said exhibits strengthened the case of the prosecution and supported the confessional statements.

The trial Court proceeded to convict the appellant on the basis of the same. There was no evidence outside the alleged confessional statement linking the appellant to the robbery. The evidence of PW1 and PW2 did not provide any linkage as both witnesses stated that they were unable to identify the assailants. The learned counsel submitted that where an accused person retracts his confessional statement a trial Court must be wary of convicting on the same without some other compelling corroborative evidence and also subjecting the confessional statement to intense and detailed scrutiny.

See Nwaebonyi v. State (1994) NWLR (Pt. 343) 138. Appellants counsel submitted that the learned trial Judge failed to evaluate the evidence placed before it and thereby falling into error by placing so much weight on the Confessional Statement to convict the appellant. The learned counsel urged the Court to exercise its powers to re-evaluate the evidence. See Ali v. State (2015) LPELR 24711 (SC) and Abraham v.

State (2017) LPELR 42873 (CA). ​ The respondent’s counsel submitted that the respondent led credible evidence to prove the offence of armed robbery against the appellant beyond reasonable doubt as required by Section 138 of the Evidence Act. And, the trial Court dispassionately and properly evaluated the evidence in arriving at the conviction and sentence of the appellant. He submitted that the requirement of proved is beyond reasonable doubt and not proof beyond every and all shadow of doubt. See Esene v. State (2017) 8 NWLR (Pt. 1568) 337, Rabiu v.

State (2005) 7 NWLR (Pt. 925) 491 and Moses Jua v. The State (2010) 4 NWLR (Pt. 1184) 217. Learned counsel submitted that there are three ways of proving a crime. These are: 1. Direct evidence 2. Confessional Statement made by the accused person and 3. Circumstantial evidence See Akibu v. State (2019) 11 NWLR (Pt. 1588) 177. The learned counsel concede to the elements of the offence of armed robbery earlier listed by the appellant’s counsel. And he further cited the following cases to buttress his submission. Musa v. State (2017) 5 NWLR (Pt. 1557) 43, FRN v. Barminas (supra), Dairo v.

State (2018) 7 NWLR (Pt. 1619) 399, Saminu v. State (2019) 11 NWLR (Pt. 1683) 254 and Obade v. State (1991) 6 NWLR (Pt. 198) 430. The learned counsel submitted that the appellant is not contesting the first two elements of the offence of armed robbery to wit that there was a robbery or series of robberies and that the robbery was an armed robbery. The evidence of PW1 to PW7 and Exhibits A – M clearly reveals that there was a robbery and it was an armed robbery. The only question left to be answered is thus: Whether or not the appellant participated in the armed robbery for which he was charged.

The learned counsel submitted that the respondent has also proven this fact beyond reasonable doubt through the confessional statement of the appellant and other exhibits. A free and voluntary confession of guilt by an accused person if it is direct positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt as confession alone is sufficient without further corroboration to warrant a conviction. SeeIkpo v. State (2016) 10 NWLR (Pt. 1521) 501, Rex v. Ajayi Omokaro (1941) 7 WACA 146, Ogoala v.

The State (1991) 2 NWLR (Pt. 175) 509, Queen v. Obiasa (1962) 2 SCNLR 402 and Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 433. Learned counsel submitted that in Exhibits C, D, C1 and D1 the appellant confessed to having committed the crime of armed robbery together with the other accused persons. But at the point of tendering the said confessional statements the appellant did not object to the admissibility of same on ground of involuntariness rather the appellant retracted the confessional statement.

And the evidence of PW4 clearly shows that there was full compliance with the provisions of the extant law when the extra-judicial statements were taken. And that the trial Court can convict on the confessional statement of the appellant whether (retracted or not) alone without any recourse to any other evidence. See Adisa v. State (2019) 3 NWLR (Pt. 1660) 488. Therefore, the trial Court’s decision to look outside the appellant’s confessional statement Exhibits C and D and C1 and D1 was made in the abundance of caution.

The voluntariness or otherwise of the confessional statement of the appellant was not in issue at the trial Court. And where an accused person retracts his confessional statement at the point of tendering it in evidence, he will not be allowed to summersault at the point of giving evidence in chief that the confessional statement was made involuntarily. It is too late in the day as it is considered an afterthought. See Dairo v. State (supra) and FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141.

The learned counsel further submitted that in testing the truthfulness of a retracted confessional statement the Court would be expected to consider whether the confession was consistent with other facts which have been ascertained and proved at the trial no matter how slight. See State v. Ibrahim (2019) 9 NWLR (1676) 137 and Ameh v. State (2018) 12 NWLR (Pt.1632) 99.

Learned counsel submitted that the combined evidential value of the appellant’s written confessional statement corroborated by the unchallenged and uncontradicted evidence of PW1 – PW7 was more than adequate in providing the perfect legal backing for the trial Court to rely on in convicting and sentencing the appellant.

Learned counsel submitted that the evidence adduced by the entire respondent’s witnesses reveals that PW7 misstatement of the date the weapons were deposited with him as exhibit keeper is nothing more than a mere minor slip which did not affect the totality of his evidence or the reliability or evidential value of the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery. And the appellant did not cross-examine PW7 on this supposed crucial point. The misstatement of the date of receipt of the exhibits by PW7 becomes insignificant and is of no moment.

The position of the law is that an error in stating the date in a criminal matter is an immaterial or inconsequential error which has no effect on the trial or on the judgment of the trial Court. See State v. Ahmed (2020) 14 NWLR (Pt. 1743) 1. And Sagiru Attahiru v. The State (2020) LPELR 51092 (CA). Relying on the case of Adeleke v. State (2014) All FWLR (Pt. 722) 1652 and Asimi v. State (2016) 12 NWLR (Pt. 1527) 414, the learned counsel submitted that the trial Court was right to rely on the confessional statement of other co-accused person as corroborative evidence of each other.

See also State v. Buhari (2019) 10 NWLR (Pt. 1681) 583. The respondent counsel submitted that without conceding that there are few contradictions and inconsistencies, such contradictions must be material and fundamental. They must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the accused. See Awopejo v. State (2001) 92 LRCN 3187, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Nwosisi v. State (1976) 6 SC 109, Ayo Gabriel v. State (1989) 5 NWLR (Pt. 122) 457 and Princent & Anor. v. State (2002) 12 SC (Pt. 1) 137.

Learned counsel submitted that the law is that the burden is on the party who alleges contradictions to discharge the burden by showing quite glaringly that the inconsistency is material in order to succeed. See Brilla v. FRN (2018) 16 NWLR (Pt. 1645) 305. Learned counsel submitted that the appellant failed to discharge that burden having argued that the number of armed robbers that PW1 and PW2 testified that they saw whether 2 or 4. The name of the nominal complaint whether Gambo or Gambo Mallam Yau. Where the appellant lives, whether Dankama or Dankaba village.

How much money was taken the nature of the weapons used by the robbers. The name Musa Nashehu which was provided by the appellant in Court and Musa Shaaibu Nashehu written on the appellant’s confessional statement. All never detracted from the fact that the Appellant did participated in the armed robbery. The appellant’s reply brief is a mere re-argument of the appellants brief. It does not conform with Order 19 Rule 5(1) of the Court of Appeal Rules 2021. A reply brief is or should be a response to any new issue or point raised in the respondent’s brief.

It is not a repair kit and should not be a reargument or a repetition of the appellant’s brief. See N.P.A v. Aminu Ibrahim & Co., (2018) 12 NWLR (Pt. 1632) 62 (SC). Accordingly therefore the reply brief is discountenanced. The law is firmly settled that in criminal trial the burden of proof rest on the prosecution to prove its case beyond reasonable doubt. Section 135(1) of the Evidence Act 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt.

See Section 36(5) of the 1999 Constitution (as amended) which provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. However proof beyond reasonable doubt is only required to attain a high degree of probability and not the degree of absolute certainty. In other words, it is not prove beyond all doubts or shadow of doubt. See Rabiu v. State (2005) 7 NWLR (Pt. 925) 491 and Esene v. State (2017) 8 NWLR (Pt. 1568) 337. The prosecution can discharge its burden in three ways.

These are through direct evidence of an eye witness, through confessional statement of the accused and through circumstantial evidence. See Akibu v. State (Supra) and F.R.N. v. Barminas (supra).

Both the appellant and the respondent are adidem on the three essential elements to be established in a charge of armed robbery. These are: 1. That there was a robbery or series of robberies 2. The robbery was an armed robbery and 3. The accused participated in the robbery. See Musa v. State (supra) FRN v. Dairo (supra) and Saminu v. State (supra). The prosecution must lead cogent and positive evidence that leaves no room whatsoever for any other conclusion other than that it was the appellant who committed the offence.

Where there is any slightest doubt on the case of the prosecution, the benefit of doubt must be resolved in favour of the accused person. In other words, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133 and Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87 Para 10-20. In this instant case, seven witnesses testified for the prosecution, PW1 to PW7. And several exhibits were tendered and admitted in evidence as Exhibits A-M.

These includes the extra-judicial statement of the appellant with other co-accused persons and the weapons used to commit the robbery. While reviewing the evidence before the Court, the learned trial judge stated thus: “PW1 was the alleged victim, one Gambo Mallam Ya’u aged 32 years lives at Dankaba in Kaita Local Government Area. A livestock trader. He told the Court that on 5th September, 2016 which was a Monday around 3:00am.

He was suddenly woken up from his sleep by a sound of beating with a stick on his leg and he noticed two (2) people standing in front of him, their faces covered with turbans. They were holding matchet sticks, and horns and torch light. He was engulfed with fear. It was then the Robbers told him that. They were sent to kill him. They requested for money which he gave them N203,000.00 and 25 pounds of sefa which he had kept in his trouser. Gambo said he was pursued with a knife when he attempted to pursue them….

Under cross-examination, PW1 replied that he could not challenge the robbers because it was dark and they were carrying dangerous weapons…… The wife of PW1 was PW2 she affirmed and informed the Court that it was around 3:00am when she was coming out of the toilet she notice two (2) people who covered their faces with mask.

They hit her husband (PW1) with a stick while he was sleeping and told him that they were send to kill him and when he replied it was o.k (sic) they asked PW1 if he was not afraid of death and that the Armed Robbers later demanded for money which he brought out and gave them.” From the evidence of PW1 and PW2, it has been established that there was a robbery on the 5th of September, 2016 at Dankaba and the robbery was an armed robbery.

The next crucial question is whether the appellant participated in the robbery? PW1 and PW2 who were victims of the robbery they both stated in their evidence that the robbers covered their face with turbans and mask, and that it was dark. During cross-examination, they both said they could not identify the robbers. Therefore, the issue of identification becomes a sine qua non. But in this instant case, although identification parade is desirable, it is unnecessary in this circumstance.

Reason being that the victims of the robbery stated clearly that they could not identify the robbers because it was dark and the robbers covered their face. Therefore, unless the accused persons were promptly arrested at the scene of the crime before they have the chance to escape, identification of the accused persons taking part in the crime becomes very difficult. And that is not the case in this situation that is to say that the appellant and other co-accused persons were not arrested at the scene of the crime.

As a matter of fact, there is no evidence led as to how, when and where the appellant was arrested. Where an accused person is not properly and clearly identified as the one who actually took part in the commission of the crime but merely arrested by the police on suspicion and charged to Court, there is doubt as to the guilt of the accused person. However, the trial Court relied on the retracted confessional statement of the appellant and the weapons used in committing the robbery to ground a conviction.

Further reviewing the evidence the learned trial judge held thus; “… Both recorded statements were identified by PW4 and were sought to be tendered in evidence. The move was objected by the defence counsel on the ground that the 3rd accused person has made a retracted of his confessional statement. The Court overruled the reason for the objection and admitted the statement in evidence as Exhibits C and D and C1 and D1 for the additional statements both in Hausa and English versions…” The learned trial judge rightly admitted the confessional statements in evidence.

It is settled law that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made it has retracted. See Ikemson v. The State (1989) 6 SC (Pt. 1) 114 at 130-131. In other words, the retraction of a confessional statement does not render the said statement inadmissible in evidence. The trial Court has a duty to admit the said confessional statement in evidence and then decide on the weight to attach to it at the end of the trial.

In determining the weight to be attached to a retracted confessional statement the Court is expected to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. This is done by considering the following: 1. Whether there is anything outside it to show that it is true 2. Whether it is corroborated 3. Whether the accused had the opportunity of committing the offence 4. Whether the facts stated in it are true as far as can be tested 5. Whether the accused persons confession is possible 6.

Whether the confession is consisted with the other facts ascertained and proved at the trial. See Osetola v. State (2012)17 NWLR (Pt. 1329) 251, Akpan v. State (2000) 12 NWLR (Pt. 682) 607 and Kareem v. FRN (2002) 8 NWLR (Pt. 770) 664. Before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See Okoh v. State (2014) 57 (Pt. 2) NSCQR 732 and Bassey v. State (1993) 7 NWLR (Pt. 306) 409.

In this instant case the learned trial judge relied on the evidence of PW7 along with the exhibits tendered through him to strengthen the case of the prosecution with regards to the confessional statement. PW7 testified in Court and he stated thus: “My name is Insp Idris Abdullahi No. 130811 attached to SCID Katsina as exhibit Keeper. I am 46 years old. I have been an exhibit keeper for 2 years now, I know why I am in Court.

On the 14/8/2016 one Insp Adamu Musa attached to Anti Robbery section of SCID Katsina brought some exhibit in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration. I registered them and gave them number, they are as follows: 1. 6 sticks 2. 4 Knives 3. 2 sword 4. 1 cutlass with curve head 5. 1 mask 6. 2 turbans 7. 2 dark glasses 8. some charms 9. 1 animal horn 10. some amount of money (cash) which was later released to the owner on bond. All the exhibits were tied together and marked as 223/2016 except the motorcycle which was kept outside the Court.

All the exhibits is with the prosecution counsel.” It is crystal clear that from the evidence of PW7, the exhibits were brought to the SCID on 14/8/2016 by Insp Adamu Musa and they were registered on that date. It is instructive to note that the alleged robbery took place on the 5th September, 2016 as per the evidence of PW1 and PW2. And Insp Adamu Musa who took the exhibits to PW7, is the PW4. In his evidence PW4 Insp Adamu Musa stated thus: “… yes I know why I am in Court. I investigate cases and compile the case diaries. Yes I know the accused persons.

I can recall on 7/9/2016, a case of criminal conspiracy and armed robbery was referred from Keita divisional police station to the state CID for investigation and I happened to be one of the IPOs. Our team is 4 in number I am the 1st one there is Abey Sunday Insp (3) Armaya’u Magaji PW3 and (4) CPL Yahaya Abdullahi.” I am on the same page with the submission of the learned respondent counsel that on the evidence of PW7 the exhibits were registered on 14/8/2016.

This raises a critical question as to how exhibits that were allegedly used during an armed robbery operation on 5th September, 2016 could have been registered with an exhibit keeper in August 2016 about three weeks before the alleged robbery.

In his own response to this critical question, the respondent’s counsel submitted that a calm perusal of the entire evidence adduced by the respondent’s witnesses will reveal that PW7 misstatement of the date the weapons were deposited with him as exhibits keeper is nothing more than a mere minor slip, which did not affect the totality of his evidence and indeed the reliability or evidential value of the exhibits including the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery.

It is trite law that however well presented arguments by counsel cannot take the place of evidence. It is also trite that Courts of law do not act on speculation but on proved facts. See NNPC v. FAMFA Oil Ltd (2003) FWLR (Pt. 154) 812, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Nigeria Arab Bank Ltd v. Felly Keme (Nig) Ltd (1995) 6 NWLR (Pt. 387)100 Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 636.

The arguments of the respondent’s counsel is not borne from the records. The learned trial judge did not make such a finding before placing reliance on the exhibits. The effect is that there was no evidence to corroborate the retracted confessional statement. In the recent case of Gbadamosi v.

The State (2019) 4 NWLR (Pt. 1661) 29, the Supreme Court held thus: “In the case of an accused person, the Court will take the view that the accused has retracted from the confession and apply the veracity test to see if the confession is true and where it comes to the conclusion that the confession is true and there is evidence to corroborate the confession, the Court could proceed to convict the accused based on the confession.” In line with the decision of the Apex Court, I hold that where an accused person retracts his confession, the trial Court has a duty to apply the veracity test to ensure that the confession is true and to also look for corroborative evidence before convicting the accused person.

See Adamu Saliu v. The State (2014) 12 NWLR (Pt. 1420) 65 at 84-85, Nwaebonyi v. The State (1994) 4 NWLR (Pt. 343) 138 at 157, Adisa v. State (2019) 3 NWLR (Pt. 1660) 488, Karimyu Sunday v. The State (2017) LPELR-42259 (SC). In this instant case, the learned trial judge should have exercised caution in convicting the appellant based on the confessional statement without applying the veracity test.

This is because the appellant in his evidence in chief, he stated thus: “I told them that I just came into the town, they searched me and I was beaten, two of my handset, drivers license and the sum of N4000 were all seized from me. After my denial they took me to Kaita DPS where I was beaten again and tear gas was sprayed on me which made me fall asleep.. They woke me up around 12am and took me upstairs and asked me whether I was once killed and came to live. I said no. They showed me a dead person laying on the floor who they told me was accused of committing a similar offence.

They brought out metal and hit me, they asked me to tell them what I know regarding the offence but I insisted I know nothing about it. They asked me to go back to the cell but could not walk until one of them robbed tiger on my legs and helped took me down stairs..” See pages 33-34 of the record. In confirmation of what the appellant told the Court that he was beaten, PW1 during examination in chief, he told the Court that: “… later I heard the news that the people who went and robbed me had been arrested.

On hearing this, I immediately rushed to the police station and I met them being beaten.” See page 11 of the record. This pieces of evidence should have agitated the mind of the learned trial judge to subject the confessional statement to veracity test and look for corroborative evidence outside the confession.

The learned trial judge was in error to have convicted the appellant on the retracted confessional statements Exhibits C, C1, D and D1 without applying the veracity test and without any corroborative evidence except the weapons which were registered three weeks before the commission of the offence as exhibits used in the armed robbery. Consequently, I resolve the sole issue in favour of the appellant. ​ The appeal is indeed meritorious and it is allowed.

Therefore, the conviction and sentence of the appellant for the offence of armed robbery contrary to and punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004, in Charge No: KTH/27C/2016 are hereby set aside. Accordingly, I enter a verdict of acquittal and discharge for the Appellant Musa Nashehu.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Abubakar Mahmud Talba, JCA. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is meritorious and ought to be allowed. I abide with the consequential orders.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court; Coram: Modupe Fashanmi, Nonyerem Okoronkwo and Haruna Simon Tsammani JJCA, who delivered the judgment on the 16th February, 2018 affirming the decision of the High Court of Ogun State delivered on the 17th April, 2014 convicting the appellant of conspiracy to commit armed robbery and armed robbery, per A.J. Lamina J.

BACKGROUND FACTS The Appellant was charged with a one (1) count offence of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap.R.11, Laws of the Federation of Nigeria and four (4) counts of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11, Laws of the Federation of Nigeria.

Count 4 was struck out by the learned trial Judge consequent upon a no-case submission application by the defence, while the Appellant opened his defence at the trial Court with respect to counts 1, 2, 3 and 5. The ruling on the no case submission is at pages 101-107 of the record of appeal.

The particulars of the offences charged per pages 3-4 of the record of appeal are that the Appellant along with others now at large purportedly conspired on the 16th November, 2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State while armed with an offensive weapon to wit: gun robbed one Idowu Adebayo of the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira) (Count II).

Another count is in respect of the robbing of Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) (Count III). Yet another count is the robbing of Joseph Bankole of a Mazda 626 car with registration No. AJ 319 AKM and the sum of N50,000.00 (Count V).

​The prosecution listed nine (9) witnesses but only four (4) witnesses gave evidence for the prosecution to wit: PW1 – Mr. Raheem Adegbite, cashier at “P” Sunny Enterprises, PW2 – Mr. Joseph Bankole, a retired soldier, PW3 – Idowu Adebayo, a Salesman and the PW4 – Sgt Lawal Lukman, Police Officer. The Appellant (accused person at the trial Court) gave evidence on his behalf.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The evidence of PW1 is at pages 53 – 57 of the record of appeal. The evidence of the PW2 is at pages 57 – 73 of the record of appeal. The evidence of the PW3 is at page 74 of the record of appeal. The evidence of the PW4 is at pages 76 – 78 of the record of appeal. The evidence of the Accused (Appellant) is at pages 107a – 107d of the record of appeal. The final written address of the Accused (Appellant) is at pages 108 – 110 of the record of appeal while the final written address of the prosecution is at pages 111 – 113 of the record of appeal.

At the conclusion of the trial, the learned trial Judge in his judgment depicted at pages 114 – 140 of the record of appeal found the Appellant guilty as charged for conspiracy to commit armed robbery and armed robbery in respect of grounds 1, 2, 3 and 5 whereupon the Appellant was sentenced to death by hanging consequent upon the Appellant filing an initial appeal to the Court of Appeal, Ibadan Division upon being dissatisfied with the aforesaid judgment of the trial Court.

​The Appellant was granted extension of time to appeal by the Court of Appeal, Ibadan. The subsequent notice and grounds of appeal are depicted at pages 114 – 140 of the record of appeal. The Judgment of the Court of Appeal, Ibadan Division is at pages 190 – 222 of the record of appeal. The appellant being dissatisfied with the judgment of the Court of Appeal, Ibadan Division filed a Notice and Grounds of Appeal to the Supreme Court. He nominated the following issues for determination, viz:- 1.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the Court. (Grounds 1, 2, 3 and 6) 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s purported statements – exhibits “B & C- C2” as exhibits and treated same as confessional statement in spite of the fact that same were retracted by the Appellant. (Grounds 4 and 5).

Learned counsel for the respondent Eko Ejembi Eko Esq adopted the brief of argument filed on 11/7/2018 and deemed filed on 5/11/2020 and in it were formulated three issues for determination, viz:- 1. Whether the learned Justices of the Court of Appeal Ibadan division were right to have affirmed the decision of the learned trial Judge, that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of evidence before the Court. 2.

Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the decision of the learned trial Judge admitting the Appellant’s statement – Exhibits B, C & C2 as evidence and treated same as confessional statements in spite of the fact that same were retracted by the Appellant. 3. Whether the Appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

The No.3 issue of the respondent is comprehensive and sufficient in the determination of this appeal and I shall use it as a single issue.

LONE ISSUE Whether the appellant has shown special grounds to warrant this Court to set aside concurrent decisions based on findings on facts of both the appellate and trial Courts.

Advancing the position of the appellant, learned counsel stated that the prosecution did not prove its case beyond reasonable doubt against the appellant as to warrant the lower Court affirming the appellant’s conviction for conspiracy to commit armed robbery and armed robbery having regard to the totality of the evidence before the trial Court. That there is no substantiated evidence of the participation of the appellant in the purported robbery incident. He cited Nigerian Airforce v Obiosa (2003) 4 NWLR (pt. 810) 333 at 253; Obiakor v The State (2002) 10 NWLR (pt. 776) 612 at 616.

For the appellant, it was contended that the ingredients of armed robbery were not made out. He cited Lukmon Osetola & Anor v The State (2012) All FWLR (pt. 649) 1020 at 1037; Usman Maigari v The State (2010) All FWLR (pt. 546) 405 at 427.

​That the evidence proffered by the appellant was discountenanced by the trial Court who chose to believe that of the PW1, PW2 and PW3 as to whether there was a robbery incident on the 16/11/2007.

That the common purpose necessary in an offence of conspiracy was not made out and also that the agreement between the parties was not proved beyond reasonable doubt. He cited Smart v The State (2016) LPELR – 40827; Njovens v The State (1973) 5 SC P. 7.

That the prosecution did not lead any evidence from which the trial Court can draw inferences of the offence of conspiracy to commit armed robbery from the acts of the appellant in order to justify its affirmation of the conviction of the appellant by the lower Court.

Learned counsel for the appellant further submitted that there are contradictions in the evidence of the prosecution witnesses which should be resolved in favour of the appellant. He cited Agbo v The State (2006) All FWLR (pt. 309) 1380 at 1399 etc.

Chief Omu of counsel for the appellant contended that the learned trial judge wrongly admitted the extra-judicial confessional statement of the appellant, Exhibits “B & C- C2” as the appellant had retracted the said statements and the Court below was wrong to affirm the reliance of the trial Court on the said statements to convict the appellant. He cited Folorunsho Kazeem v The State (2009) FWLR (pt. 465) 1749 at 1773.

That the trial Court had not determined the truth or otherwise of the confessional statement before admitting and relying on them to convict.

For the appellant, it was contended that the Supreme Court should interfere with the concurrent findings of the two Courts below as they appear perverse, occasioned a miscarriage of justice against the evidence adduced and in violation of some principles of law and procedure. He relied on Ajayi v Adesuyi (2012) All FWLR (pt. 634) 1 etc.

Learned counsel for the appellant concluded that if the Court is not minded to allowing the appeal and acquitting the appellant, the Court should reduce the sentence. He cited Semiu Afolabi v The State (2013) All FWLR (pt. 702) 1690.

Mr. E.E. Eko of counsel for the respondent submitted that the uncontroverted and unchallenged testimonies of the prosecution witnesses show clearly that the appellant in the company of others armed with guns, robbed P. Sunny Enterprises Ltd on 16/11/2007. That the evidence showed that the appellant in conjunction with others within the same vicinity also armed with guns robbed PW2 of his car and valuables on the same day, and then when the appellant was apprehended, he shot PW2 in an attempt to escape.

He went on to contend that the confessional statement of the appellant confirming he was a member of the gang of armed robbers and that he had joined them for the particular robbery that took place on 16/11/2007 which is the date of incident under discourse. That there was enough evidence with which the conspiracy would be inferred. He cited Bouwor v State (2016) LPELR-26054 (SC) pp. 13 – 14.

Learned counsel for the respondent submitted further that the Court could still utilise the retracted confessional statement if there exist other independent corroborative evidence to give credence to the statement. He cited Ejinima V State (1991) LPELR – 1067 (SC).

That the concurrent findings of the two Courts below ought not to be disturbed as the appellant has not put forward any perverse route in the course of the findings and no violation of law or procedure nor a travesty of justice. He cited Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

The stance of the appellant in brief is captured in his assertion that there was no evidence linking the appellant to the purported robbery and that the confessional statement of the appellant were wrongly relied on by the trial Court and upheld by the Court below and the weight of evidence implored the Court to allow the appeal and set aside the conviction and sentence of the appellant.

The respondent on its part rejected the position of the appellant on all fronts stating that the offences of conspiracy to commit armed robbery and armed robbery were proved by the prosecution beyond reasonable doubt.

The offences of conspiracy to commit armed robbery and armed robbery which are contrary to Sections 6(b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.R.11 LFN.

In the offence of conspiracy to commit armed robbery, in order to secure a conviction the prosecution must prove the following facts: a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the armed robbery or series of robbery; c. That the robbery or each of the robberies was an armed robbery.

To ground a conviction for the offence of armed robbery, the prosecution has the duty of proving beyond reasonable doubt that; a. That there was a robbery; b. That the robbers were armed with offensive weapons as at the time of the robbery; and c. That the accused person participated in the robbery. The above three elements must be established beyond reasonable doubt before the Court can convict for each of the respective offences. It is to be noted that if any one of these elements is not proved beyond reasonable doubt, the conviction will be quashed on appeal.

See the case of THOMAS V STATE (2017) LPELR-41735 (SC). See also Yusuf v State (2018) All FWLR (pt. 405) 1731.

The concept of proof beyond reasonable doubt in criminal trials was orchestrated by the Supreme Court as that reasonable doubt which will justify an acquittal. It is a doubt based on reason arising from evidence or lack of it. That doubt which a reasonable man or woman might entertain and is neither fanciful nor an imaginary doubt. It is such a doubt as would cause an otherwise prudent person to hesitate before acting in a matter of importance concerning themselves. See Jua v State (2010) LPELR-1673 SC per Tobi JSC.

Another way of stating it is that, it is doubt which is logical, rational and lucid and so before a Court can convict for a capital offence such as the offence under review, it must ensure that the evidence before it is credible, coherent, leaving no hesitation that the accused committed the offences.

In the case at hand, the appellant was charged with a one count of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act which ingredients that must be proved to convict for the said offence to be as follows:- a. That there was an agreement between the accused and others to commit armed robbery; b. That in furtherance of that agreement the accused took part in the commission of the robbery or series of robberies; c. That the robbery or each of the robberies was an armed robbery.

Going back in time to the trial Court, PW1 and PW2 gave evidence that appellant was in the company of other persons, armed with offensive weapons when they robbed PW1, PW2 and PW3 on the 16/11/2007 at P. sunny Enterprises Ltd and the immediate environs. In fact PW1 stated that he was in the office at P. Sunny Enterprises Ltd when some people wielding guns ordered him to open the safe in the cash office and the people took the money and rushed out. PW1 later identified appellant firstly at Adigbe Police Station and later at State C.I.D. Eleweran as one of the robbers that robbed him.

These pieces of evidence were not challenged or controverted therefore the evidence must be accepted as the correct version of what PW1 said. See Elegushi & Ors v Oseni & Ors (2005) LPELR-1111(SC).

PW3 testified that he was in the company of PW1 when he was also robbed of the sum of N88,435.00 at the same venue on the same date. That it was when he (PW3) entered the office that he met the two boys who were armed with guns and they ordered him to lie down and subsequently dispossessed him of the sum of N88,435.00. Of note is that there was no cross-examination which gives the implication that appellant accepted the narration as the truth of the matter. See Ighalo v State (2016) LPELR – 40840 (SC) per Akaahs JSC.

PW2 testified that he was robbed of his MAZDA car and the sum of N50,000.00 by two people when he tried to assist them after their car fell into a ditch in the vicinity of P. Sunny Enterprises Ltd on the said 16/11/2007. The appellant was subsequently apprehended inside the said car that had fallen into the ditch and when searched by PW2 who recovered a gun and 9 cartridges from him before appellant shot him.

I shall quote excerpts from the testimony of PW2 for more clarity, thus:- “On the 16/11/2007, around 10.30am, I wanted to go to the bank… as I entered the Street (Ayorinde Street) being a major road, I looked at my left and my right I saw two vehicles pursuing themselves. I just saw a Toyota Camry car entered the gutter that day, I was moved and I came out of my vehicle to rescue them. I thought they had an accident so that I can give a helping hand and take them to hospital if they are (sic were) injured. They pointed a gun at me and asked me to give them my key.

I shouted and they took the key of my car and drove my car away.” PW2 stated further that: “…The Toyota Camry was still inside the gutter and somebody among the crowd entered the Toyota Camry and off the engine. This person now shouted that somebody is inside the car. The Accused person was inside the car at the side where the Toyota Camry entered the gutter and there was no escape for him and thus he could not to follow his colleagues. He was pulled out of the car and the crowd started beating him.

I stopped them that if he was wounded now I will not be able to report to the Police and it may be impossible for me to recover my car that has just been stolen, I held him and started searching him and I brought out nine(9) cartridges from his body. Because I did not allow the crowd to beat him, they started shouting that his colleagues are coming and the crowd disappeared leaving only myself and the Accused. He started to struggle with me and I refused to let leave him. He put/dipped his hand into his pant and brought out a gun.

He wanted to shoot me and eventually shot me and I discovered blood on my clothes, so I left him.

The gun shot attracted the people out again as they thought he has killed me and I asked them to pursue him as he had dispersed with the only cartridge inside the gun…” (See pp. 57 – 73 of the records of appeal) The Appellant on the 16/11/2007 made a statement to the police wherein he stated that he was in the company of some other people who committed the alleged robberies on the day in question but he didn’t have anything to do with the robberies as he was only in the car; he admitted to having been apprehended in the car and he went on to state further thus: “…on our way going one BMW car hit our car and he started pursuing us, we got to one street our car got accident with the BMW, Segun and two other came down and escape.

I don’t know what they take to escape I was still in the car, when people came around and started beating me. Nobody pursuing me, I was caught inside the car where the car got accident. Inside the car with me they found one locally single barrel gun and one …shot double barrel gun in the black bag, they did not find the gun inside my pocket. The ten life cartridges is inside the black bag. I am not the owner of it. Segun is a student of Moshood Abiola Polytechnic Abeokuta, I don’t know his a robber and I have not followed them to any operation before.” (See pp. 10-12 of the records of appeal)

In a subsequent statement made to the police on the 22/11/2007 the same Appellant stated that he was a member of gang of armed robbers and that he had joined them for the particular robbery that took place on the 16/11/2007 and he had narrated thus:- “…when I get there, I met them inside Toyota Corolla car black I entered with them.

They share the gun which I was given one local made double barrel pistol and all of us were with gun with enough cartridges we got to a place they stopped the car, Segun, Alabi and Abiwere came down of the car and enter one store and they came back with one travelling bag containing money and then enter the car we drove away on our way going one BMW hit our car and started pursuing us until we got to a place, I don’t know the name of the place when the BMW overtake us and the car run into drainage which the car cannot move again, Segun Alabi, Abiwere came down of the car and run away and left me inside the car when I try to escape people around the place pursue me and I was caught with gun in my hand, I hold double barrel pistol locally made …”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In yet another statement made by the same Appellant to the police on the 23/11/2007 the Appellant narrated details of how he joined the armed robbery gang, the names of his gang members and how much he realised from other earlier successful armed robbery operations and stated regarding the specific robbery operation of the 16/11/2007 thus: “…The place we robbed is one beer depot at Oke Sokori. When Segun and others came back they held one medium sized bag and entered the vehicle.

As we were going our vehicle hit one other vehicle in front of us, from there the owner of the vehicle we hit started pursing our vehicle. He pursued our vehicle to it eko where he made our vehicle entered gutter. At that place my other gang members came down from our vehicle because my eyes were turning as a result of the accident. From there my colleagues left me inside the vehicle while they quickly snatched another vehicle with gun to escape from the scene, While I was inside the car, some people came around me up there and beating me …” (See Pages 20-23 of the record of appeal)

The confessional statement of the appellant, exhibits B, C-C2 gave details of the planning, participation of appellant and the others in the robbery which was an armed robbery.

On the matter of conspiracy, it is now well settled that conspiracy to commit an offence is such that it is inferred or deducible from the criminal acts of the accused person done in conjunction with others. Conspiracy in this case is inferred from the common commission of the offence by the accused in company of others as was done by the appellant.

The inference deducible upon which the offence of conspiracy is proved stems from the fact the elements of the offence are embedded in the agreement or plot among the parties which is rarely capable of direct proof hence it is deduced from the acts of the parties towards the realisation of the common criminal purpose. The various acts of the accused and his cohorts including appellant’s extra-judicial statement have given ground to the establishment of the offence of conspiracy to commit armed robbery.

See Bouwor v State (2016) LPELR-26054 (SC); Njovens & Ors v The State (1973) 5 SC 17; Haruna & Ors v The State (1972) All NLR 738 at 754.

​The defence pushed by the appellant that he was in a vehicle close to the scene of the robbery and was not one of the robbers, is a story that would have rendered some comic relief except that a serious incident such as armed robbery cannot be a laughable happening. The story he told the Court is not supportable in the light of the overwhelming evidence adduced by the prosecution including the identification of the appellant as participating in the acts and the corroborative confessional statements he proffered.

On the question whether the Court below was right to have affirmed the decision of the learned trial judge admitting the appellant’s statements, Exhibits B, C & C2 as evidence and treating same as confessional statements despite the appellant retracting them. In answer to that poser, I would humbly state that it is now beyond debate as to whether a retracted confessional statement can be used to convict an accused as happened in this instance if there exist other independent corroborative evidence giving credence to the truth of the resiled confessional statement as in this case.

See Ejinima v State (1991) LPELR – 1067 (SC) per Nnaemeka-Agu JSC. The mere assertion by the appellant that he did not make the confessional statements did not render them inadmissible nor reduce the weight the trial Court would attach to such evidence. This is because the issue of admissibility or not of extra-judicial statements comes up when the voluntary status of the making is questioned, which is not the case here. See Sunday v State (2017) LPELR – 42259 (SC) per Bage JSC.

Clearly, the circumstances prevailing at the trial Court did not hamper the learned trial judge admitting the retracted or denied confessional statements and going on to rely on them in convicting the appellant on the charges of conspiracy to convict armed robbery and armed robbery itself.

Now comes the final point of the appeal before the Court being based on concurrent findings of fact of the two Courts below. The appellant is asking this Court to reverse those findings and the question thereby thrown up is if the appellant has shown a miscarriage of justice or wrong application of law or procedure for which this Court would go against the policy of Court which is usually loathe to interfere with concurrent findings of facts of lower Courts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

From what is before me, there is nothing persuading a departure from the norm concerning concurrent findings of fact of the two Courts below as what led to those findings are clearly borne out of the record and there was proper application of the law, substantive and procedural and no miscarriage of justice had taken place. Therefore the push to upset those findings are propelled by empty air. See Chukwuemeka Agugua v The State (2017) LPELR – 42021 (SC).

Indeed, there is a surfeit of material on which the trial Court found the essential elements of the offence of conspiracy to commit armed robbery and armed robbery proved beyond reasonable doubt. The Court below rightly affirmed those findings and conclusion and I see nothing on which I can upset what those two lower Courts did.

There is no merit in this appeal and I dismiss it as I affirm the judgment of the Court of Appeal which upheld the conviction and sentences of the appellant. Appeal Dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is no merit in the appeal and should be dismissed. I too will dismiss it. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgement delivered now. I agree with His Lordship that there is no merit in this appeal. It therefore deserves to be dismissed.

Much like a drowning person, the appellant canvassed all kinds of arguments in the vain belief that they could save him. For instance, he entreated this Court to upturn the concurrent findings of the lower Courts. The answer to this submission is not far to seek. As it is well-settled, an appellant who desires that this Court should upset the concurrent findings of lower Courts has a big burden. It is his duty to show, in a clear and positive way, that such findings violate some principles of law or procedure.

Against that background, they therefore deserve to be overturned, Ibanga v Usanga [1982] 5 SC 103; Kuforiji v V.Y.B. Ltd [1981] 6-7 SC 40; Awoyale v Ogunbiyi [1986] 2 NWLR (pt 24) 626; Olaloye v Balogun [1990] 5 NWLR (pt 148) 24, 38; UBA Ltd v Achoru [1990] 6 NWLR (pt 156) 254; Motunwase v Sorungbe [1988] 4 NWLR (pt 92) 90; Olatunde and Anor v Afolabi (2001) LPELR – 2576 (SC).

The appellant failed to donate any material to warrant any interference with the said concurrent findings of the lower Courts. I shall therefore decline his invitation to do violence to settled principles. This appeal has no redeeming feature. I therefore, enter an order dismissing it. Appeal dismissed. I abide by the consequential orders in the leading judgment.

EJEMBI EKO, J.S.C.: The appellant herein is complaining about concurrent findings of fact against him by the two Courts below. The appeal is essentially against concurrent findings of fact. It is against this background that the counsel for the respondent submits, correctly in law, that the concurrent findings of fact by the Courts below ought not be disturbed unless the appellant has been able to establish that those concurrent findings are perverse, or that there had been a violation of some law or procedure, which has occasioned a miscarriage (or travesty) of justice: CHUKWUEMEKA AGUGUA v.

THE STATE (2017) LPELR – 42021 (SC). That is the extant state of the law which this Court, in its appellate practice, has consistently stuck to.

The mere fact that the appellant retracted his confessional statement which was massively self-incriminating does not amount to special circumstance warranting this Court to interfere with the adverse concurrent findings of fact.

A retracted confession is not ipso facto an inadmissible piece of evidence. It is still a legal piece of evidence available to the trial Court for purposes of evaluation of the totality of the evidence. The trial Court could act on it, if it was satisfied that the appellant made the statement voluntarily, or when other pieces of evidence outside the disputed confession corroborated the confession in materia paticular, as in the instant case.

Exhibits B & C, C2 were the extra judicial statements of the appellant, They were recorded by the PW.4. They were confessional. At the effort made by the appellant to retract and indict them, on grounds of their involuntary making, the trial Court subjected them to trial-within-trial, and found them to have been voluntarily made by the appellant. That finding affirmed by the intermediate Court had thus resolved the issue – whether the appellant infact made the confessions. It was an appealable decision (by dint of Section 318 of the Constitution). It was not appealed.

It therefore persists and subsists against the appellant, and/or between the parties.

On the confession alone, a confession being the best evidence, the trial Court could have sustained the appellant’s conviction for the alleged offences.

In any case, the purported retraction was half-heartedly made post facto. In one breath the appellant admitted making his extra-judicial statement in Yoruba Language. It was not a total plea of non est factum. No miscarriage of justice exists, nor has any been established, to warrant interference. In any case this is not the core issue in this appeal.

​This same issue was argued as issue 4 at the lower Court. It was dismissed. The repetition of the same issue in this further appeal is, in my view, an abuse of Court process. The process of appeal is for review of the decision complained of, and not for repetition of an issue resolved or determined. The appellant therefore in his appeal must show how wrong the resolution of an issue by the lower Court was, and not to re-present the same issue to the higher Court for a second try at the bite.

It should be clear to the appellant’s counsel, by dint of Section 233(1) of the Constitution, that the jurisdiction enuring to this Court is only “to and determine appeals from the Court of Appeal”, and not from the trial Court and that closes against the appellant the right to re-present an issue presented and resolved against him at the intermediate Court in the appeal against the trial Court’s decision.

Coming, as I do, to the conclusion that the appellant has not been able to establish any special circumstance warranting this Court interfering with, or disturbing, the concurrent findings of fact against him; I have no cause to disturb them. I agree with my learned brother, MARY UKAEGO PETER-ODILI, JSC, that there is no substance in this appeal. I hereby join my learned brother in dismissing the appeal in its entirety. The decision appealed is hereby affirmed. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Mary Peter-Odili, JSC, just delivered and I agree that this appeal be dismissed on the reasons and conclusion advanced by him.

The Appellant with others now at large allegedly conspired on 16/11/2007 at “P” Sunny Enterprises, Oke Sokori, Abeokuta, Ogun State, while armed with offensive weapons, robbed one Idowu Adebayo the sum of N88,435.00 (Eighty Eight Thousand, Four Hundred and Thirty Five Naira). It was also alleged that they separately robbed one Raheem Adegbite of the sum of N1,866,375.00 (One Million, Eight Hundred and Sixty Six Thousand, Three Hundred and Seventy Five Naira) and one Joseph Bankole was robbed by them of a Mazda 626 car with registration No.

AJ 319 AKM and the sum of N50,000 (Fifty Thousand Naira). They were arraigned for conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, LFN, and armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, LFN. Count 1 was on conspiracy while the other four (4) counts were on armed robbery. On a no case submission, count 4 was struck out while the Appellant entered his defence on counts 1, 2, 3 and 5. Four (4) witnesses gave evidence for the prosecution while the Appellant testified alone.

The trial Court convicted the Appellant on counts 1, 2, 3 and 5, and sentenced him to death by hanging.

Dissatisfied, the Appellant appealed to the lower Court but lost, hence this appeal. From the diverging issues formulated by both the Appellant and Respondent’s Counsel, this issue shall cover all the issues formulated: Whether the Appellant has shown special grounds to warrant this Court to set aside the concurrent decisions based on findings of facts of both the appellate and trial Courts.

PW1 and PW2 were eye witnesses to the commission of the armed robbery which the Appellant was charged with, and they gave cogent and uncontroverted evidence that proved the ingredients of armed robbery against the Appellant. His confessional statement, Exhibits B, C-C2, though retracted, confirmed this.

​Although the eye witness account is not conclusive to convict on armed robbery where other doubts exist, there is no law which says a conviction for the offence of armed robbery cannot be sustained solely on the evidence of a victim’s eye witness to the commission of the crime. 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. See Per RHODES-VIVOUR, JSC in UDO V. STATE (2018) LPELR-43707(SC) (P.22, PARAS. A-B).

Although the Appellant has contended the reliance of the Court to convict him on his retracted confessional statement, where an accused person resiles/retracts from a confessional statement made by him, his conviction upon the said statement will depend on the following conditions: 1. Whether there is anything outside the confession to show that the statement is true. 2. Whether it is corroborated. 3. Whether the statement made in it of fact are true as far as they can be tested. 4. Whether the accused had the opportunity to commit the offence. 5.

Whether it is consistent with other facts which have been ascertained and have been proved. See Per OKORO, JSC in STATE V. SA’IDU (2019) LPELR-47397(SC) (PP. 11-17, PARAS. C-D).

​Although the lower Court did not only base the conviction of the Appellant on the retracted confessional statement, the above conditions were considered to ascertain the voluntariness of the confessional statement. Again, being a concurrent decision by the 2 Courts below, and having not spotted any miscarriage of justice or perverseness in the decision, I shall affirm the judgment of the lower Court. This appeal therefore fails and is dismissed.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is consequent upon the judgment of the Court of Appeal, Ibadan Judicial Division delivered on October 28th, 2016, in appeal No. CA/IB/227/2015. By the judgment in question, the Court below affirmed the judgment of the High Court of Ogun State, holden at Abeokuta, delivered on December 18th, 2014, in charge No.

AB/2R/2013, thereby convicting and sentencing the Appellant and one other person to death by hanging for the offences of conspiracy to commit robbery and armed robbery, punishable under Sections 6(b) and 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS On July 17th, 2013, the Appellant and one other person were arraigned before the trial High Court upon a four count information – viz: COUNT I STATEMENT OF OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY Contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE ​LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large, on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery. COUNT II STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed Rukayat Ajayi of Three Hundred and Fifty Thousand Naira (N350,000.00) and her mobile phones. COUNT III STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Zainab Ahmed of her Nokia mobile phone. COUNT IV STATEMENT OF OFFENCE ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Taiwo Adekoya of his three mobile phones.

The Appellant pleaded not guilty to the 4 count charge read and explained there to in Yoruba Language. The charge proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the following conclusive effect: It is evidently clear that the 1st and 2nd accused persons conspired with one Morufu who is at large to rob PW1, PW2 and others of their belongings on the 16/09/2010. I hold that they are guilty of the offence of conspiracy in count I. In the final analysis, I find the prosecution has proved all four counts against the accused persons.

I hereby find the accused persons guilty as charged. They are hereby convicted on all four counts of the information.

Accordingly, the trial Court proceeded, in the absence of an allocutus, to pass sentences upon the Appellant and co-convict:

SENTENCING By law, the punishment for the offences of conspiracy to commit armed robbery, and armed robbery in counts I-IV of this information and for which the accused persons have been charged, tried and found guilty is a mandatory one over which I have no discretion to exercise. Accordingly, on count I, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead. On counts II-IV, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead.

Not unnaturally, the Appellant has been utterly dissatisfied with conviction and sentences passed thereupon by the trial Court, thus appealed to the Court below. On October 28th, 2016 the Court below delivered the vexed judgment to the conclusive effect: Although, learned counsel for the Appellant did not specifically challenge the finding of the trial Judge on the count of conspiracy, there is no doubt from the confessional statement that the three culprits formed a common intention or agreement to effect an unlawful purpose, to wit armed robbery.

They did not act individually but in pursuance of a common purpose to commit armed robbery. The actual commission of the offence provided evidence of their common intention… Having resolved the sole issue against the appellant, I hold that this appeal lacks merit. It is hereby dismissed. I affirm the judgment of the lower Court.

With a view to exhausting the right of a further appeal accorded thereto under the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Appellant has deemed it expedient to institute the present appeal. On January 28th, when the appeal came up for hearing, the learned counsel had the opportunity to address the Court and thereby adopted the argument contained in the respective briefs thereof. Thus, resulting in reserving judgment.

The Appellant’s brief, settled by Mutalubi Ojo Adebayo Esq. on 06/02/2018, spans a total of 16 pages. At page 3 thereof, a sole issue has been formulated: Whether by the nature of evidence on the record, the Justices of the Court of Appeal rightly affirmed the conviction and sentence of the Appellant by the trial Court in holding that the prosecution has proved its case against the Appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

The argument of the Appellant’s learned counsel in a nutshell, is to the effect that the offence was allegedly committed in the night around 7pm. And that Appellant was not arrested at the scene of crime. The record does not bear the source of the purported information, based on which the Appellant was arrested.

It was submitted, that the Appellant had denied Exhibits P10 and 12 – the confessional statement. The evidence of PW1 under cross-examination was copiously referred to, to the effect that the PW1 saw the Appellant (2nd Accused person) for the first time in her life-time at the police station at Ibara. Thereby, rendering the said Exhibits P10 and P12 the confessional statement impossible and doubtful. See, NWABUEZE VS STATE (1988) 7 SCNJ 248, 257, 258; ANI VS. STATE (2009) ALL FWLR (pt. 482) 1044, 1062. KASA VS. STATE (1994) 5 NWLR (pt. 344) 269 @ 286 paragraphs C-H.

​Further agued by the learned counsel, that once the victim of robbery says he saw the person that robbed him and can identify that person, identification parade becomes necessary, and must be conducted. See BOZIN VS. STATE (1985) NNCL VOLUME 16 (part II) 1087 at 1092 lines 40 – 45.

It was posited, that the prosecution’s case is fraught with doubt, as a result of material contradictions or lack of sufficient evidence. See IBEH VS. THE STATE (1997) 1 NWLR (pt. 484) 632 at 650; ONUOHA VS. THE STATE (1988) 8 – 11 236, et al.

The case of EDIBO VS. STATE (2007) A FWLR (pt. 384) 192 at 207 paragraphs C-D was also cited and relied upon, to the effect that the Appellant can be given the benefit of any defence available to him.

Thus, it’s vehemently posited, that for the charge of conspiracy to commit armed robbery to be sustained, certain elements must be established by the prosecution beyond reasonable doubt. See, AFOLALU VS. THE STATE (2010) 16 NWLR (pt. 1220) 584; (2010) LPELR-197 SC 26 paragraphs A – F; SANI VS. THE STATE (2015) 6-7 (pt. 11), @ 17-78, et al.

​Conclusively, the Court is urged upon to resolve the sole issue against the Respondent, upturn the verdict of acquittal and discharge in favour of the Appellant.

Contrariwise, the Respondent’s brief, settled by Adekolapo Ilorin, Esq. on 25/04/2018, spans a total of 19 pages. At page 4, the learned counsel has deemed it expedient to distil a sole issue from ground 2 of the Appellant’s notice of appeal: Whether from the entirety of the evidence on Record, as well as material available, the conviction of the Appellant for the offences, of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

The pith of the Respondent’s submission, is that the combination of the evidence of PW1, PW2, PW3, PW4 and Exhibits P1-P11 gives credence to the fact that there indeed was an armed robbery on 16/11/2010 at No. 62, Sabo Road Abeokuta.

It was argued, that the said gun pointed at the PW1 was one of the locally made guns (Exhibits P6 and P7) recovered from the scene of arrest of the DW2, the accused. Further argued, that Exhibits P10 and P12 both give credence to the fact that the accused was one of those who took part in the crime.

​According to the learned counsel, a confessional statement, without more, is enough to sustain a conviction. See ACHABUA VS. THE STATE (1978) 12 S.C. (pt. 63) 68-69.

It was equally submitted, that no defence of alibi was raised at the trial. And long after the Appellant was arrested, he was unable to adduce any evidence to support the defence that he was somewhere else on 16/09/2010 at the time of the incident. See ESSIEN VS. THE STATE (2013) LPELR-20749.

It is posited, that the prosecution has proved beyond reasonable doubt that the Appellant was at the scene of the crime on 16/09/2010. That this has been successfully established by the direct evidence in Exhibits p10 and p12, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4. See ONAH VS. STATE (1985) 3 NWLR (pt. 12) 236, 244 paragraphs C-D; AKINBISADE VS. THE STATE (2006) 17 NWLR (pt. 1007) 184, 212 paragraphs A-B, et al.

​On the whole, the Court is urged to hold, that from the foregoing, the evidence, both circumstantial and confessional, is not just cogent, but complete and unequivocal that no other conclusion ought to be inferred than that the Appellant was not only at the scene of the crime on the day of the incident, but that he also committed the offences for which he was convicted.

I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in their respective briefs vis-a-vis the record of appeal as a whole. I would want to think and hold, that the sole issue distilled by the Appellant from the two grounds of the notice of appeal is very much germane to and apt for the determination of the appeal itself. Thus, I have deemed it most apt to adopt the sole issue with a view to determining the appeal, one way or the other.

DETERMINATION OF THE APPEAL As copiously alluded to above, the sole issue for resolution raised the very vexed question of whether or not by the nature of the evidence on record, the Court below rightly affirmed the conviction and sentence of the Appellant by the trial Court on the ground that the prosecution has proved its case against the Appellant beyond reasonable doubt.

​It is a trite fundamental doctrine, that for the prosecution to succeed in sustaining the charge of armed robbery against an accused person, under Section 1(2)  (a) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria, 2004 (supra), it has the burden of proving beyond reasonable doubt the following ingredients: (i) That there was an armed robbery or a series of armed robbery; (ii) That the robbery was an armed robbery (iii) That the accused person had participated in the commission of the armed robbery; See, AGBOOLA VS.

THE STATE (2013) NWLR (pt. 1366); (2013) LPELR-SC 434 2011 @ 26 paragraphs D-G; BOZIN VS. THE STATE (1985) 2 NWLR (pt. 8) 465 @ 467; ALABI VS. THE STATE (1993) 7 NWLR (pt. 307) 551, et al.

In the instant case, with a view to proving its case against the Appellant, the prosecution had called a total of four witnesses who testified as PW1, PW2, PW3 and PW4, respectively. The prosecution had equally tendered a total of 13 exhibits – Exhibits P1 – P13, respectively.

The PW1 was in the person of Rukayat Ajayi, a trader of No. 14 Osho Majiyagbe, Adigbe, Abeokuta. The evidence of the PW1 is contained at pages 53-54 (examination-in-chief) and 54-56 (cross-examination) of the Record of Appeal.

In a nutshell, the examination-in-chief of the PW1 is to the effect, inter alia, that on 16/09/2010 at about 7pm, she was at her shop and a consignment of rice and oil was being offloaded for her: “Then, I saw the 1st accused person was holding a gun and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter to lie face down and he asked me to bring out my bag, that in case I hesitated, he would shoot my daughter.

I looked around and saw that the 1st accused has entered the 3rd shop to mine and was ordering the people there to keep their mouths shut. Out of the fear that they should not kill my daughter and with the memory that my mother also died from an armed robbery attack; I released my bag to that 3rd person… I was shouting and screaming and crying while they were being pursed (sic).”

Under cross-examination by the defence counsel, the PW1 stated inter alia: “At the police station, Ibara, I identified the 2nd accused (who was arrested) as one of the robbers that came to my shop. I saw the 2nd accused for the 1st time in my life at the police station. I had never seen him before then… I was not at the scene when the 2nd was apprehended, I met him at Ibara police station. The accused persons robbed me.”

The PW2, Zainab Ahmed gave evidence to the effect, inter alia: “I recollect that on 16th September, 2010, at about 7pm, myself and my mother were sitting at 2 different tables in front of our shop. The people that came to offload goods for us were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate with him because he is “Jegun jera” (someone who eats the meat along with the bone), failing which he would try his gun on me. He said all he needed was her bag and that he was not holding a toy gun.

I looked around and saw that another man with gun holding the people in the 3rd shop to ours hostage… There were three men that came to robbery operation.”

Under cross-examination, the PW2 maintained that she was told by the robber to face down: “It was only at the point of collecting my phone that they requested me to look up again. I went to Ibara police station the next day to only make statement.”

​The PW3, Ogunleye Idowu, was woman police sergeant No. 021457 attached to the Ogun state CID Anti-Robbery section, Abeokuta. According to the PW3: “The 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with a case file and exhibit (2) Locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle. I identify the exhibits now.”

The said items having been identified by the PW3, they were accordingly admitted by the trial Court as exhibits P2, P3, P4, P5, P6 and P7, respectively. An application and Bond paper for the release of the motorcycle to Oladeinde Akeem (the alleged owner thereof) were equally identified by the PW3 and accordingly admitted by the trial Court as exhibits 8 and 9.

It was equally stated by the PW3 that accused persons were allegedly thoroughly beaten and injured by a mob: “After they had been treated and I saw that they were in good condition to make statements. I rearrested, charged and cautioned of accused one after the other in English and they volunteered their statements also in English Language which I recorded … They signed as the maker which I signed as the recorded. The statements being in nature, took the 2 accused persons before my superior officer, ASP SP Fola Ogunkoya (now deceased).

In my presence, the statements were read over to the accused persons in English language by my superior and they confirmed them to be their statements. My superior endorsed the statements, the accused persons signed and I also signed as the IPO. I now identify the statements of the accused persons.”

Having been so identified by the PW3, the statement of the 1st accused (Appellant) was admitted by the trial Court as exhibit P11.

Under cross-examination by the defence counsel, the PW3 maintained that he could not remember how many days after the case file was transferred that they visited the scene of crime.

​The PW4, was Akeem Salami police Sgt No-205956. He testified to the effect that on the said 16/09/2010, he was on duty at Ibara Divisional police HQS at about 23:15hrs, when a case of conspiracy and armed robbery was reported and referred to him for investigation. It was in the course of that investigation that he rearrested the 1st and 2nd accused persons. He also found two locally made pistols, one live cartridge and one expended one on the 2nd accused person. He charged and cautioned both accused persons and recorded their respective statements.

However, the confessional statements being confessional had to be confirmed and duly endorsed by a senior police officer in the person of DSP Jacob Olayemi. The confessional statements of the 1st and 2nd accused persons were identified by the PW4 and accordingly admitted by the trial Court as Exhibits 12 and 13 respectively. The PW4 equally identified Exhibits P2-P7 respectively. Under cross-examination by the defence counsel, the PW4 maintained thus: “The 2nd accused person was arrested on the 16th September, 2010. He was brought to me and I rearrested him.

I set my eyes on the 2nd accused for the 1st time at Ibara police station. It was a group of person that brought the 2nd accused to the station that also brought 2 locally made pistols, one live cartridge and one expended cartridge to the statement. One cutlass and one knife were found on the 1st accused upon his arrest at laderin on the 21st September, 2010. All that I told the Court is all I did in respect of this case except that a police officer, I am on the lookout for the co-suspect who is at large.”

​Consequent, upon the testimony of the PW4, the prosecution deemed it expedient to close its case. Thus, the Appellant opened the defence thereof on 21/12/2014 as DW1. The Appellant (as 1st Accused person) testified in examination-in-chief that prior to his incarceration in the prison, he was living at Odemo village in Adigbe where he worked as a bricklayer.

On the 16/09/2010, in question he went to his working place somewhere behind the mechanic village at Kobape and returned home at 6.30pm and slept. According to the Appellant: “On the 17th and 18th, I also went to work and returned on 19th was Sunday and I did not go to work. On Monday 20th I was weak and did not go to work. It was on the 21st September, 2010, that I went to work again at the same site of Kobape I rode a commercial motorcycle I noticed a crows shouting. I then asked the motorcyclist not to leave yet in order for me to find out what was happening.

The motorcyclist waited while the noise confirmed. About five minutes later, a bus drove in and some mobile policemen alighted from it people started to run away. I stood there with some people. That was how those of us standing there (including the motorcyclist) were arrested and driven away to somewhere near trade fair complex. Their the mopol informed their boss of our arrests. The boss inquired if anything was found in our possession and they answered in the negative. The boss ordered that we be taken to the police station at Ibara.

Conclusively, the Appellant stated in his examination-in-chief thus: “When I was taken to the State SCID, I was already seated in car when another man was brought to join me in the car. He is the and accused person… It was Exhibits P12 that the police men thumb printed my thumb on involved in any act of armed robbery.”

Under cross-examination by the prosecution the Appellant stated: “It was where I went to work on the 21st September, 2010, that I was arrested… of his were arrested- myself, the motorcyclist, one other bricklayer and another person. The 2nd accused was not one of those arrested with us on that day.

​Against the backdrop of the circumstances surrounding the instant case vis-a-vis, the totality of the evidence adduced at the trial, there is every cogent reason for me to uphold the concurrent findings of the trial Court and the Court below, to the effect that there was a robbery incident on September 16th, 2010 at No. 62 Isabo Road, Abeokuta, Ogun State, thereby establishing the 1st ingredient of the offence of armed robbery beyond reasonable doubt under Section 1(2)(a) of the Armed Robbery And Fire Arms (Provisions) Act Laws of the Federation of Nigeria, 2004 (Supra).

It is not at all controversial, as amply established by the prosecution vide the PW1 and PW2, that on the said 16/09/2010, at about 7pm while the PW1 and PW2 were seated outside their shops and goods were being off-loaded thereinto, the Appellants and two other persons who were armed with guns invaded their shops and robbed them of their belongings. Most particularly, the PW1 was robbed of her hand bang containing the sum of #350,000.00 (Three Hundred and Fifty Thousand Naira).

With particular regard to the 2nd and 3rd ingredients of the offence, whether the robbery was armed robbery properly so called, the evidence of the PW1 is to the effect that: PW1: “On the 16th September, 2010, at about 7pm I was at my shop and a consignment of rice and oil was being offloaded for me. Then I sand the 1st accused person (Appellant) was holding a gun (sic) and pointing it directly at me. The 3rd person was the one giving instruction.

He instructed the people with me and my daughter (PW2) to lie face down and he asked me to being out my bag that in case I hesitated he would shoot my (PW2).

Looked around and saw that the 1st Accused (Appellant) has entered the 3rd shop to and was ordering the people there to keep their mouth shut. … the 3rd person requested for the phones of those lying down and he collected them after taking my bag.” The testimony of the PW2 is largely corroborative of the evidence of the PW1; the fact that the PW1 had stated under cross-examination that she had seen the 2nd accused person at Ibara Police Station for the first time in her life, notwithstanding!

​The PW1 was most particularly emphatic that the Appellant (1st Accused Person) had actively participated in the armed robbery incident in question. Thus, the PW1 was specific and unequivocal in regard to the role actively played by the Appellant and the two other persons in the commission of the armed robbery on that day and time in question.

As aptly found by the trial Court at page 112 (lines 1 – 18) of the Record: “PW1 said that 1st accused was on standby on a motorcycle, the 2nd accused was holding a gun and the 3rd accused held a gun, pointed it directly at her and requested for her bag … PW 1 was called on the phone that one of the robbers had been caught and she went over to the scene where he was apprehended. By the time she got there, they moved him to Ibara Police Station. Their she met the 2nd accused who was apprehended with a gun and she identified as one of the robbers that came to her shop that evening.

PW1 also identified the 1st accused person in this Court as the person who was on standby on a motorcycle at the time of the robbery.”

Undoubtedly, the foregoing finding by the trial Court which was duly upheld by the Court below, is cogent, unassailable and duly supported by the evidence on record. It is a trite fundamental doctrine, an eyewitness account of the commission of any act, be it an offence (crime) or otherwise, is the best specie of evidence amenable to the Courts. See IMO VS. THE STATE (2001) 1 NWLR (Pt. 694) 314.

​It was the argument of the Appellant, at page 7 (paragraphs 6.00-6.04) of the brief thereof, to the effect: [T]hat no identification parade was conducted in this case… [T]he purported identification of the Appellant by the 2nd accused person (sic) is no identification as it was rather strange and cannot take the place of the proper identification parade which under the law, is required in this case.

Instructively, the term ‘identification’ in criminal law, denotes the act or process of providing that a person charged with an offence and arraigned before a Court of law or Tribunal is the same person who actually committed that offense. The term ‘identification’ is varied and ubiquitous: (i) DOCK IDENTIFICATION: refers to an in-Court declaration by an eyewitness to a crime that the defendant (accused person) in the dock was the person who committed the crime or was present at the scene of the crime.

Also termed ‘in-Court identification’; (ii) EYEWITNESS IDENTIFICATION: This type of identification denotes a naming or description by which a person who has witnessed (seen) testifies from memory about the person or persons involved. For many years, Courts, especially in the USA, have recognized that eyewitness identification belongs to the league of the least reliable forms of evidence. Most particularly, DNA exonerations have proved that eyewitness identification is frequently inaccurate. See U.S.

VS BROWNLEE 454 F. 3d. 131, 141-142 (3d, Cir, 2006); MEMORY CORRUPTION, which is thus an issue in regard to the accuracy of eyewitness identification. See BLACK’S LAW DICTIONARY 11TH Edition, 2019 @ 893-894, 1180.

The essence of identification parade under the rules of criminal procedure and practice, cannot be overemphasized. Identification parade is required when the identity of the suspect is in doubt, most especially where: (i) The offence was committed in the dark and the victim only had a fleeting encounter with the robber, (ii) It is clear that the victim was traumatized in the course of the commission of the crime, (iii) The eyewitness or victim fails at the earliest opportunity to name the person known to him. Who he claims committed the crime.

However, where the victim of the crime or witness promptly identifies the suspect, there would be no need for an identification parade. See OSUAGWU VS. THE STATE (2013) LPELR-19823 (SC) Per Rhodes-Vivour, JSC @ 18 paragraphs B – F. The law is well settled, that where is good and cogent evidence linking the defendant (accused person) to the crime on the day of the incident, then a formal identification becomes quite unnecessary. See AFOLALU VS. THE STATE (2010) 16 NWLR (Pt. 1220) 584 PER Adekeye, JSC @ 616 paragraph A.

THOMAS VS THE STATE (2017) 9 NWLR (Pt. 1570) 230 @ 256 paragraphs G-H; et al.

What’s more, by virtue of Exhibits P10 and P12 (the Appellant’s confessional statements made at the Ibara police station and State CID Eleweran, respectively), there is every reason to believe that the Appellant had actively participated in the commission of the armed robbery in-question. Hear the Appellant (PW) in his own words: “On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine, myself and Morufu have both robbed people on transit before, we both snatch bags from passerby of Adigbe area.

When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan. I only go on operation with Morufu. On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg.

No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle. I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

Undoubtedly, the Appellant’s confessional statement (Exhibits P10 and P12) have been further corroborated by the evidence of the prosecution star witnesses, in the persons of the PW1 and PW2, copiously alluded to above. Thus, the active participation of the Appellant in perpetrating the armed robbery in question is not at all doubtful, notwithstanding the retracting of the said confessional statements by the Appellant in the eleventh hour!

Indeed, the doctrine is well settled, to the unmistakable effect, that a retraction of a confessional statement does not necessarily render such a statement void. That’s to say, a confessional statement does not become inadmissible merely because it is subsequently retracted by the maker thereof in the course of trial. See SOLOMON THOMAS AKPAN VS. THE STATE (1992) NWLR (pt. 248); (1992) 7 SCNJ 22; (1992) LPELR-381 (SC) per Karibi – Whyte, JSC @ 36 paragraphs E-F; SHITTU VS. THE STATE (1970) 1 ALL NLR 228; QUEEN VS. ITULE (1961) 1 ALL NLR 462; (1961) 2 SCNLR 183; ADAMU VS.

A.G BENDEL STATE (1986) 2 NWLR (pt. 22) 284; AREMU VS. THE STATE (1991) 7 NWLR (pt. 201) 1; EJINIMA VS. THE STATE  (1991) 6 NWLR (pt. 200) 627.

By virtue of the plethora of authorities on the point, inclusive of the locus classicus – R. VS. SKYES (1913) 8 CR. A.

R 233, in order to determine the weight to be attached to a confessional statement, it behooves the Court to resolve whether or not: (i) There is anything outside the confession to show that it is true: (ii) The confession is corroborated. (iii) There are relevant, facts made therein true as far as they can be tested; (iv) The defendant (Accused person) was one who had the opportunity of committing the offence armed robbery in the instant case. (v) The said confession was possible; (vi) The confession was consistent with other facts which have been ascertained and duly proved beyond reasonable doubt.

See NSOFOR VS. THE STATE (2004) 18 NWLR (pt. 905) 292; NWACHUKWU VS. THE STATE (2007) 17 NWLR (Pt. 1062) 31.

​A confessional statement, once it’s duly established to be free, voluntary, direct and positive, is quite sufficient to sustain a conviction. However, the Court is required to, first and foremost, test the veracity (truth) of the confession before acting thereupon, thus, once the Court comes to the inevitable conclusion that the confession is true, the confessional statement alone is sufficient to ground and support a conviction without corroboration.

Albeit the veritable test for determining the veracity of confessional statement, is to seek any other extraneous evidence, no matter how slight, of circumstances which render it probable that the confession is indeed true. See ALARAPE VS. THE STATE (2001) 5 NWLR (Pt. 705) 79 @ 98 Paragraphs F-G; ACHABUA VS. THE STATE (1976) 12 SC. (Pt. 63) 68-69.

Remarkably, the trial Court made some far-reaching findings in the course of the vexed judgment at pages 115-116 of the Record: 5) It is noteworthy that the 1st accused person (Appellant) who was later arrested on the 21/09/2010, stated in Exhibits P10 & P12 that the 1st accused was a new comer to their gang and his first robbery outing with them was on the 16/09/2010. He stated that he and Monefu (now at large) had been carrying out previous robberies together.

He further stated that five days after they robbed PW1 and PW2, he and Monefu met again at their usual spot and went on another expedition at Laderin Estate to harass workers on building sites and extort money from them, from where he got arrested and Monefu again escaped. 6) Also in Exhibits P10, P12, the 1st accused had stated that he was a commercial motorcyclist … and that on the 16/09/2010, he carried the other two robbers on that motorcycle to the scene of crime.

These extra-judicial statements of his one corroborated by the evidence of PW3 & PW4 to the effect that one Bajah Motorcycle was recovered on the day of the incident. They one also corroborated by the evidence of PW3 that the owner of the motorcycle applied to the police for its release and same was released to him on bond.

I find the confessions in the extra-judicial statements (Exhibits P10-P13) to be consistent with other facts which have been proved by the prosecution and I believe that the accused persons had the opportunity of committing the crime, particularly as they could not give satisfactory explanations in their oral evidence before this Court as to the cause of their arrests.

On the part thereof, the Court below aptly held at page 179 (lines 10-17) of the Record: The alibi the Appellant tried to set up in his evidence chief was Unverifiable and Unreliable. The alibi was not set up at the Police Station to enable the police carry out appropriate investigation. Analysis of the Status of the Confessional Statements was masterfully set out by the trial Judge in the judgment at pages 113-117.

His Lordship thus tested fully the reliability of the Confessional Statement and was right in basing the conviction of the Appellant on it; the Appellant having fully identified himself in the confession as a party to the robbery.

Arguably, the foregoing concurrent findings of the two Courts are most undoubtedly cogent, unassailable, and duly supported by the evidence on record.

As aptly postulated by the Court below at page 179 (lines 18-22) of the said Record, although the Appellant did not specifically challenge the finding of the trial Court in regard to the conspiracy count, there is no doubt from Exhibits P10 and P12 in question, the Appellant and the two other persons had formed a common intention (agreement) to effect an unlawful purpose: armed robbery. Undoubtedly, the Appellant and the two other persons did not act individually, but rather, in pursuance of a common purpose with a view to committing armed robbery.

Thus, the actual commission of the offence of the armed robbery in question provided a veritable evidence of the trio’s common intention, as aptly held by the two Courts below in the concurrent findings thereof in question.

Indeed, it’s a well settled doctrine per-adventure by this Court in a plethora of veritable authorities, that where there is sufficient evidence to support concurrent findings by the two lower Courts, such findings ought not to be tempered with (disturbed), unless the findings are shown to be perverse, or occasioned some miscarriage of justice, or breached some fundamental principle of law or procedure. See OGOALA VS. THE STATE (1991) 2 NWLR (pt. 175) 509; (1991) 3 SCNJ, 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) per Nnaemeka – Agu, JSC @ 25-26 paragraphs G-B; NASAMU VS.

THE STATE (1979) 69 SC 173. SOBAKIN VS. THE STATE (1981) 5SC 75; NWIBOKO VS. THE STATE (1985) 4 SC (pt. 11) 183; IKEM VS. THE STATE (1985) 1 NWLR (pt.2) 378 @ 388.

Hence, against the backdrop of the foregoing far-reaching postulations, I am of the considered view that the sole issue raised and canvassed in the appeal by the respective parties ought to be, and same is hereby resolved against the Appellant. Thus, having ultimately resolved the sole issue against the Appellant, the appeal resultantly fails, and same is hereby dismissed by me.

The concurrent judgment of the Court below, is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, and to register the support I have in the reasonings from which the decision emanated, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal Ibadan Division or Court below or lower Court, Coram: M.B. Dongban-Mensem, C.E. lyizoba and N. Okoronkwo JJCA, delivered on the 28th day of October, 2016. In the said judgment, the Court below affirmed the decision of the trial Court of 18th December, 2014 wherein, the Appellant was convicted and sentenced to death by hanging.

Dissatisfied with the judgment of the lower Court, the Appellant has come before this Court upon two grounds of appeal.

At the hearing on the 28th January, 2021, date of hearing, learned counsel for the appellant, M.O. Adebayo adopted the brief of argument filed on 6/2/2018 and deemed filed on 21/11/2019. He distilled a sole issue for determination, viz:- Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution had proved its case against the appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

Learned counsel for the respondent Adekolapo Ilori adopted the brief of argument filed on 23/4/2018 and deemed filed on 21/11/2019 and crafted a sole issue as follows: Whether from the entirety of the evidence on Record, as well as material available, the conviction of the appellant for the offences of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

For ease of reference, I shall make use of the issue drafted by the appellant.

SOLE ISSUE Whether by the nature of evidence on record, the learned Justices of the Court of appeal rightly affirmed the conviction and sentence of the appellant by the trial Court in holding that the prosecution has proved its case against the appellant beyond reasonable doubt. Learned counsel for the appellant contended that the alleged offence was committed around 7p.m in the night and the appellant was not arrested at the scene of crime and so the identity of the culprit was doubtful.

​That PW2 did not identify the accused persons including the appellant as the perpetrators of the alleged armed robbery. That the testimonies of the PW1 contradicted an essential part of the extra judicial confession of the 2nd accused (Exhibit PW1) which confession forms part of the prosecution’s case.

It was submitted for the appellant that an identification parade was a necessity and having not been carried out, there is a doubt which had to be resolved in favour of the appellant. He cited Bozin v State (1985) NNCC Vol. 16 (part II) p. 1087 at 1092.

For the appellant, it was contended that the appellant consistently denied the commission of the offence and also denied the authorship of the confessional statements, Exhibits P10 & 12.

That the prosecution failed to establish the elements of the charge of armed robbery and conspiracy to commit armed robbery against the appellant as there is nothing linking the appellant to the robbery based on the evidence before the Court including the testimonies of PW1 and PW2.

​Learned counsel for the respondent contended that the prosecution made out the offences of armed robbery and conspiracy to commit armed robbery beyond reasonable doubt. That the confessional statement of the appellant denied herein did not render the statement void. He cited Nwaebonyi v The State (1994) 5 NWLR (pt. 343) 138.

He stated that the appellant did not give any material with which the alibi he raised would be substantiated. He cited Essien v The State (2013) LPELR-20749.

That the circumstantial pieces of evidence adduced at the trial of the appellant are cogent and clearly pointed to the conspiracy to commit armed robbery and armed robbery for which the appellant was convicted. He cited Akinmoju v The State (2000) 6 NWLR (pt. 662) 608 at 629.

The contest in this appeal are along two opposing angles, for the appellant, that the Court below erred in law when it considered Exhibit P10 which was erroneously held to be the retracted confessional statement of the appellant to affirm the decision of the trial Court. That the appellant was not properly identified.

For the respondent, it was posited that the evidence adduced was both circumstantial and confessional and not just cogent but complete and unequivocal, that no other conclusion ought to be inferred than, that the appellant was not only at the scene of crime on the day of the incident, but he also committed the offences for which he was convicted.

It is now well settled in law that, what is required in proof of a criminal offence including the armed robbery and conspiracy to commit armed robbery charge under discourse is that the essential ingredients of the offence are proved beyond reasonable doubt by the prosecution and it is not expected that the standard of proof is one beyond every shadow of doubt.

It follows that to sustain a charge of Armed Robbery against the accused person, the following ingredients must be proved beyond reasonable doubt: (a) That there was an armed robbery or a series of robberies (b) That each of the robberies was an armed robbery (c) That the accused was one of those who took part in the robbery or robberies. I rely on Miller v Minister of Pensions (947) 2 All ER 372; Agboola V State (2013) 11 NWLR (pt. 1366) 619 at 173.

​A combination of the evidence of PW1, PW2, PW3 and PW4 coupled with Exhibits P1-P11 tendered at the trial Court all gave evidence to the fact that, there indeed was an armed robbery on the 16th November, 2010 at No. 62, Isabo road, Abeokuta. A bit of the evidence of PW1 – Rukayat Ajayi on 16th November, 2010 is thus:- “I was at my shop and a consignment of rice and oil was being offloaded for me. Then I saw the 1st accused person was holding a gun and pointing it at me…”

The 1st accused is the appellant herein. The said gun pointed at PW1, which infact qualifies the Robbery as “Armed” is perhaps one of the locally. made guns tendered as Exhibits P6 and P7, recovered at the scene of arrest of DW2, the co-accused, after the two had escaped. Additionally to the testimony of PW1, supported by Exhibits P6 and P7, the confessional statements marked Exhibits P10 and P12, made at the Ibara Police Station and State CID, was one of those who took part in the crime, even when he had resiled from therefrom at the trial.

The accused, in his confessional statement stated: “On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine; myself and Morufu have both robbed people on transit before, we both snatch bags from passers-by of Adigbe area. When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan.

I only go on operation with Morufu. On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg. No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle.

I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

The confessional statement of DW1, the accused is further corroborated by the evidence of PW2; ZAINAB AHMED under examination-in-chief, who gave a vivid account of what occurred viz: “…I recollect that on the 16th September, 2010 at about 7pm, myself and my mother were sitting at two different tables in front of her shop. The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “jegun-jeran” (Someone that eats the meat along with the bone) failing which he will try his gun on me.

He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-by motorcycle. There were 3 men that came for the robbery operation…”

The appellant had made much of his retraction of the confessional statement.

A retraction of a confessional statement by an accused person does not render such statement void.

Rather, it is settled principle as laid down by this Honourable Court that the weight to be attached to a Confessional Statement, whether or not retracted, be applied as in Nwaebonyi v The State (1994) 5 NWLR (Part 343) 138, held thus; “In R. v. SYKES (1913) 8 CR App Rep.233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in KANU v. THE KING(1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as DAWA v. THE STATE (1980) 8-11 SC 235; THE QUEEN V.

OBIASA(1962) 1 ALL NLR 651; (1962) 1 SCNLR 137; OBOSI V. THE STATE (1965) NMLR 129 and ONOCHIE V. THE REPUBLIC (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it- 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are there relevant statements made in it of facts true as far as they can be tested? 4. Was the prisoner one who had the opportunity of committing the murder? (where it is a case of murder) 5. Is his confession possible? 6.

Is it consistent with other facts which have been ascertained and have been proved? See also NSOFOR V. THE STATE (2004) 18 NWLR (PART 905) 292; OJEGELE V. THE STATE (1988) 1 NWLR (PART 71) 414; NWACHUKWU v. THE STATE (2007) 17 NWLR (PART 1062) 31”

​From a plethora of cases so decided by this Court, it is settled principle of law that a confessional statement without more, which passed the above tests as laid down by this Court as in this case is enough to sustain a conviction of an accused person. In Alarape & 3 Ors v. The State (2001) 5 NWLR (Part 705) 79, 98 F-G this Honourable Court per Iguh, JSC held that: “A confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction.

The Court should not, however, act on the confession without first testing the truth thereof. But so long as the Court is satisfied with its truth, a confessional statement alone is sufficient to ground and support a conviction without corroboration.

The test, however, for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight, of circumstances which make it probable that the confession is true.” See; Achabua v The State (1976) 12 S.C. (Part 63) 68-69 Clearly, the confessions Exhibits P10 and P12 alone being sufficient to justify the conviction of the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery, there are other pieces of evidence adduced at the trial that sustain the conviction of the Appellant, PW2 the victim of the Armed Robbery who gave evidence of the event as follows: “l recollect that on the 16th September, 2010, at about 7pm, myself and my mother were sitting at two different tables in front of her shop.

The people that came to offload goods were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate because he is “Jegun-jeran” (someone: that eats the meat along with the bone) failing which he will try his gun on me.” He said all he needed was her bag, and that he was not holding a toy gun. I looked around and saw that another man with a gun holding the people in the 3rd shop to ours hostage. I saw another man sitting on a stand-bye motorcycle. There were 3 men that came for the robbery operation…”

The evidence of PW2-ZAlNAB AHMED was neither challenged, discredited nor was she contravened under cross-examination by the Appellant’s Counsel and the trial High Court was bound to accept and act on it. In Aigbadion v. State (2000) 7 NWLR (Part 666) 686, 702-703 H-A the Supreme Court per Kastina-Alu, JSC (as he then was) “This evidence was not challenged or contradicted. The law, as I know it, is that such evidence will be accepted as proof of a fact it seeks to establish: see Nwede v The State (1985) 3 NWLR (Pt. 13) 444.

If therefore the story of an accused stands uncontradicted then it is to the facts as put forward by him that the trial judge would related the applicable law…”

PW3 – OGUNLEYE IDOWU, the Police Officer attached to the State C.I.D. Anti-Robbery Section, Abeokuta, under examination testified as to what transpired on the 23rd September, 2010 when the Accused persons were brought in. She testified thus; “l know the accused person. I remember the 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with the case file and exhibits (2 locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle…”

​Upon tendering the said exhibits and subsequently being admitted and marked, except for the motorcycle (whose Application for Release and Bond Paper were later admitted and marked Exhibits P8 and P9 respectively), PW3 testified inter alia that; “The motorcycle was released on bond to one Oladiende Akeem who claimed to have given the Motorcycle to the 1st accused for commercial business and he produced the original particulars of the motorcycle.

The said Oladeinde Akeem volunteered a statement before the motorcycle was released to him on bond and he also applied for the release of the motorcycle…”

The evidence of PW3, was not impugned by Counsel to the Appellant especially as regards the said motorcycle, neither was any effort made to discredit or deny the fact that the Accused, (now Appellant) had been riding a motorcycle prior to the 16th September, 2010 and his subsequent arrest. The existence of this Lifan Motorcycle with Reg.

No QS 218 AKD, which was ridden by the DW1 on the day of the Armed Robbery, which was later abandoned on pursuit and later recovered by the Nigeria Police clearly and unequivocally links DW1 to the scene of the crime on that very night, which was in fact corroborated by the testimony of PW2 when she said; “… I saw another man sitting on a stand-by motorcycle…”

​In addition to the testimony of PW2, through the proofs of evidence, it is seen how Oladiende Akeem gave his younger brother Ismaila Alao some money to buy a motorcycle in his name and thereafter gave it to the 1st Accused person to use for commercial purpose. This fact is further confirmed in the confessional statement of the 1st accused when he said; “…Presently now I am an Okada rider before this incident on 16/9/2010. I have my own personal Okada but it got spoiled, but the Okada I am riding now belongs to one Ismaila (surname unknown) we are in the same Okada park.

That is why he gave me Okada to ride and I am deliver to him everyday (sic). I collected this Okada Reg No. QS 218 AKD from him on the. 13/9/2010 to ride…”

At this point, the attempt of the accused to bring up a defence of alibi during trial when he gave evidence thus: “l recalled the 16/09/2010. On the day, I went to where I do bricklaying work, somewhere behind mechanic village at Kobape, and I returned home at 6:30pm and slept. On the 17th and 18th I also went to work and on the 19th was Sunday and I did not go to work. On Monday the 20th, I was weak and did not go to work. It was on the 21st September, 2010, that I went to the same site again at Kobape…”

It is a well known principle of law that for the defence of alibi to succeed; that is to say “l could not have possibly been at the scene of the crime at that instant time because I were somewhere else”, it should be raised at the earliest possible time, and there are infact a whole lot of cases to this effect. I shall cite: In Egwumi v The State (2013) LPELR-20091(SC) the Supreme Court per Rhodes-Vivour, JSC held that: “When an accused person raises the defence of alibi what he is saying is that when the offence for which I am charged was committed I was elsewhere. 1.

The defence of alibi must be properly put at the earliest opportunity by the accused person and this would be when he has the opportunity to make his statement to the Police. It must be detailed on where he was on the date in question who he has with. It would then be the duty of the prosecution (the investigating police officer) to investigate it. Failure to investigate properly may cost some doubt on the probability of the prosecutions case. 2. The accused person is required to raise the defence of alibi and the adduce evidence in support.

The burden of proving an alibi is on the prosecution and not on the accused person. 3. A defence of alibi fails when the prosecution is able to show that the accused person was at the scene of crime when the offence was committed. 4.

Where an alibi is raised for the first time during trial the prosecution is expected to rely on its witnesses to show that the alibi is untrue, since at this stage the alibi cannot be investigated.” It is therefore respectfully posited that not only was the defence of alibi raised only at the trial and long after the accused was arrested and investigations concluded, the accused, at the trial High Court was unable to adduce any evidence to support this defence that he was somewhere else on 16th September, 2010, at the time of the incident.

All he could say at the trial was that he was at his bricklaying job and returned home at 6:30pm. This is unreliable and unverified, and also not corroborated by anyone or person. The fact that the Prosecution is saddled with the responsibility of rebutting or disapproving the alibi does not mean the Police would go on a wild goose chase in search of evidence to the contrary without being furnished with adequate information by the accused who so alleges.

This point was infact succinctly captured in the judgment of this Court in Essien v The State (2013) LPELR-20749 per Ariwoola, JSC, where it was held that; “By the defence of alibi, the accused person seeks to raise a doubt of what might have been a fool proof case of the prosecution by saying that he was somewhere else at the time the crime was alleged to have been committed but not at the scene of crime.

Therefore, as where he was at the material time is a matter especially within his knowledge, the law required that for his defence of alibi to avail him and succeed in raising doubt in his favour, he ought to do certain things. Importantly, he ought to raise the defence at the earliest possible opportunity. He ought to in his statement give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden on him in his defence of alibi. See; Esangbedo V. The State (1989) NWLR (pt. 113) 57; (1989) LPELR 1163; Akile Gachi & Ors V.

The State (1965) NMLR 333 at 335; Abudu V. The State ​(1985) 1 NWLR (pt. 1) 55; Nwabueze v. The State (1988) 4 NWLR (pt.86) 16 at 34. It is instructive to note and this Court has restated over and over again, that even though it is a duty on the prosecution to investigate an alibi set up by an accused, that he was somewhere else at the time of the alleged crime, the police are not and should not be expected to go on a wild goose chase in order to investigate an alibi. See; Okosi & Ors V. The State (1989) CLRN 29 at 48. Olatinwo v. The State (2013) LPELR 19979.”

On the other hand, the prosecution proved beyond reasonable doubt that the appellant not only was at the scene of the crime on 16th September, 2010. This, has successfully established by the direct Evidence in Exhibits P10 and P12; the confessional statement of the appellant, DW1, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4, together with the circumstantial evidence available in abundance.

On the importance and effect of circumstantial evidence in criminal trials, the Supreme Court per Aniagolu, JSC in Onah v. The State (1985) 3 NWLR (Part 12) 236, 244 C-D held that: “It was a case of circumstantial evidence and the rightful inference to be drawn therefrom. Humphery, J. in Rex v.

Chung & Miao cited in Wills of Circumstantial Evidence seventh edition (1936) at page 324 is quoted as having stated that: ‘Circumstantial evidence is as good as, sometimes better than, any other sort of evidence, what is meant by is that there is, a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the jury they may well and properly act upon such circumstantial evidence.” See also: – Ukorah v.

The State (1977) 4 S.C. 167, 174 – Esai v State (1976) 11 S.C. 39 – Adekunle v State (2006) 14 NWLR (Part 1000) 349 – Uwaekweghinya v State (2005) NWLR (Part 930) 227 It was also held in Akinbisade v. The State (2006) 17 NWLR (Part 1007) 184, 212 A-B by the Supreme Court per Kalgo, JSC that: “It is also well settled that for any circumstantial evidence to support the conviction of the offence charged, that evidence must be credible, cogent, consistent, and unequivocal and leads to no conclusion other than the guilt of the person charged with the offence.”

I agree with the submission of the Respondent that the circumstantial evidence in the present appeal which warranted the conviction of the Appellant for the offences for which he was subsequently convicted the following: (a) There was a robbery attack on the PW1 at her shop on 16th September, 2010, at about 7pm and that there were three men who came on a motorcycle (b) The robbers were armed with guns and knives, which they threatened to use on PW1 and her daughter PW2. (c) Upon collecting the bag of PW1 which contained Three Hundred and fifty thousand naira (N350,000), and the phones of PW2 and another victim around, the three robbers climbed the motorcycle and drove away (d) PW1 subsequently raised an alarm and the robbers were pursued by a mob and subsequent knocked down by a vehicle (e) The Appellant and one Morufu, now at large escaped.

However, his co-accused as caught and handed over to the police the same day the robbery incident occurred; along with a motorcycle with Registration No.

QS 218 AKD (f) That the appellant was later caught five (5) days later around Kobape, Abeokuta in possession of a cutlass, where he apparently had gone to rob yet again in company of Morufu, who unfortunately escaped again. (g) PW3 testified under examination that the said motorcycle had been released on bond marked Exhibit P9 to one Oladeinde Akeem, who had applied for its release, showing the original papers of the motorcycle issued in his name. Oladeinde Akeem also claimed to have been given the motorcycle to the appellant for commercial business.

The above enumerated pieces of circumstantial evidence adduced at the trial and cogent, clearly point to the commission of the offences of conspiracy to commit armed robbery and armed robbery for which the appellant was convicted.

Assuming that the Appellant did not make, or Exhibits P10 and P12 are not in existence, the whole circumstantial evidence in this case is credible, cogent, consistent, unequivocal and leads to one conclusion only that the Appellant was one of the three (3) men that carried out the armed robbery incidence on 16th September, 2010 at the shop of PW1. ​Furthermore, the evidence demonstrated that the Appellant made Exhibit P10 and P12 which corroborate the circumstances and other evidence adduced by the Respondents as Prosecution at the trial of the Appellant: the effect of which is as outlined above and justifying his conviction by the trial High Court as affirmed by the lower Court of appeal.

The onus thereafter rested on the appellant to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by the preponderance of probabilities. The accused/appellant has not shown the capacity for such rebuttal or the casting of a reasonable doubt on the case put forward by the prosecution by preponderance of probabilities. It is no wonder the two Courts below made the conviction. See Akinmoju v The State (2000) 6 NWLR (Pt. 662) 609 at 629 per Iguh, JSC.

In respect to the question of the irregular identification and the need for an identification parade which the appellant posed. I shall rely on the case of Afolalu v The State (2010) 16 NWLR (Pt. 1220) 584 at 616 per Adekeye, JSC in which he held thus:- “identification parade is not obligatory, where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification parade may be unnecessary”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Similarly, inThomas v State(2017) 9 NWLR (part 1570) 230, 256 G-H the Supreme Court per Kekere-Ekun, J.S.C: “It is not in every case that an identification parade is necessary to identify a person accused of committing a crime.

The question whether an accused person is properly identified as being one of those who committed the offence is a question of fact to be determined by the trial Court on the evidence adduced for that purpose… In a case such as this where the evidence of PW2 as positive, cogent and unshaken under cross-examination, the learned trial Judge was entitled to rely on it along with other facts established by the prosecution in finding that the prosecution had proved its case beyond reasonable doubt”.

Following in the guide laid down byAfolalu v The State(supra), even if all other evidence adduced in this case were to be isolated, the fact that the motorcycle was Reg. No. QS 218 AKD was recovered at the scene of the arrest is a strong indicator to the fact that indeed there is an iota of truth to the findings of the two Courts below. The appellant on the other hand neither denied the fact that he was given a motorcycle nor did he report such missing so as to raise a doubt that he was not the one who rode the motorcycle on the date in question.

The appellant has appealed against the concurrent findings of facts by the two Courts below and so, this Court is averse to interfering with them when there is no miscarriage of justice occasioned. Also not available is a misapplication of law in the course of those lower Courts findings. The point has to be made that the Supreme Court or even an appellant does not enter into the interference and the disturbance of concurrent findings of Courts below which as in this instance stemmed from the evidence led and grounded in the applicable laws.

See Ibikunle v The State (2007) 2 NWLR (Pt. 1019) 546 at 567 per Onu, JSC; Shehu v The State (2010) 8 NWLR (Pt. 1195) 112 at 135 per Ogbuagu, JSC, Agbi & Ors v Ogbeh (2006) 11 NWLR (pt. 990) 65 per Musdapher, JSC (as he then was).

Clearly, there is no merit in this appeal and I do not hesitate in dismissing it.

Appeal dismissed and I abide by the consequential orders made. Appeal Dismissed.

-PER

JOHN INYANG OKORO, J.S.C.: I had the opportunity of perusing before now, a draft copy of the leading judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I entirely agree with his reasons and conclusion reached therein that this appeal is devoid of merit and deserves to be dismissed. I shall only make a few comments in support of what my brother has already done.

The position of the law is settled that in a criminal trial, there are three ways of establishing that an offence has been committed, to wit: (a) by direct evidence of an eyewitness; or (b) by circumstantial evidence; or (c) by confessional evidence of the accused person. See F.R.N. vs Barminas (2017) 15 NWLR (pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (pt. 1575) 126. The Court can safely convict an accused person where it is convinced that the prosecution has sufficiently employed any of these modes to prove the guilt of the accused.

In the instant case, it is not in doubt that there was robbery on 16/9/2010. The Appellant’s confessional statement which was admitted as Exhibits P10 and P12 corroborates the evidence of PW1 and PW2 who were eye witnesses that the Appellant was one of the robbers and that he was armed during the operation.

These are unassailable pieces of evidence and the law is clear that the evidence of a single witness, if credible and cogent, is sufficient to ground a conviction. See Ogoala v. State (1991) 2 NWLR (pt. 175) 509.

Moreover, a confessional statement is the best form of evidence employable to prove the guilt of an accused person. Where a confession is proved to be positive and truthful, such a statement is sufficient to ground conviction without more, and it is immaterial that the accused person later resiled from making the statement as in this case. See Ikemson v. State (1989) 3 NWLR (pt. 110) 455.

My learned brother has listed the perimeters for measuring the truthfulness of a retracted confessional statement so as to determine the weight to be attached to it as outlined in R. vs Sykes (1913) 8 CA R 233. In this case, all the indices align with the probability that the Appellant’s confession in Exhibits 10 and 12 was the truth and the Court was right to rely on it.

​In the final analysis, this appeal has no scintilla of merit. It is hereby dismissed by me. I abide by the orders made in the lead judgment. Appeal Dismissed.

EJEMBI EKO, J.S.C.: The Appellant and another were tried jointly for conspiracy to commit armed robbery and the commission of armed robbery contrary, respectively, to Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special provisions) Act. The Appellant, convicted for both offences, appealed. The lower Court dismissed the appeal; hence, this further appeal.

The Notice of Appeal, at pages 182-185 of the Record, filed on 20th January, 2017, against the decision delivered on 28th October, 2010 (85 days thereafter) is clearly defective, having been filed out of time. Section 27(2)(b) the Supreme Court Act, 2004, provides, mandatorily, that the period prescribed for giving notice of appeal in an appeal in a criminal case shall be “thirty days from the date of the decision appealed against”. Prima facie, this appeal is incompetent, invalid and a nullity.

At page 3, paragraph 1.10 of the Respondent’s brief there is, however, this ambivalent statement to wit: By motion on Notice of 6th February, 2018, the Appellant had sought to regularise the appeal as well as the Appellant’s Brief of 6th February, 2018 service of which was effected upon the Respondent on 9th April, 2018.”

The Appellant’s counsel did not react to it. Apart from this terse statement there is no evidence, if at all, that the Motion filed on 6th February, 2018 to regularise the incompetent appeal was ever moved, and the appeal duly “regularised”. When an appeal is incompetent and void ab initio the jurisdiction of this Court cannot be activated to even regularise it. In ADERIBIGBE v.

ABIDOYE (2009) LPELR-140 (SC) at 28-29 it was held that when an appeal is void ab initio, the jurisdiction of the Court is not even activated to empower it to grant leave in the “appeal” for an additional ground of appeal to be filed and argued: even if the issue in the additional ground is one raising substantive issue of law or jurisdiction. In other words, an incompetent appeal cannot be regularised subsequently; the appeal being dead on arrival. One, anyway, cannot place something upon nothing and expect it to stand: MCFOY v. U. A. C LTD (1961) 3 ALL E.R. 1169; (1962) A. C. 152.

​Whatever comments I make on the merits of this appeal will therefore be merely obiter dictum.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This appeal is just a frivolous exercise. Exhibits P10 and P12 are the Appellant’s confessional statements. They were admitted in evidence against the Appellant’s without objection – see pages 61 and 65 of the Record. Accordingly, involuntariness of their making not being an issue, the mini trial to resolve the voluntariness or otherwise was not conducted as it was not necessary. At page 69, when the Appellant testified as DW1, he was shown only Exhibit P12 and he retorted: It was Exhibit P12 that the policeman thumb printed my thumb on.

Exhibit P10 was not similarly shown to him, and there was no similar indictment of Exhibit P10. The said Exhibit P10 is also a confessional statement. Even without Exhibit P12, the conviction of the appellant could still be sustained on Exhibit P10 alone.

In paragraph 5.05 of the Appellant’s brief there appears this misleading statement that the Appellant denied making Exhibit P10. That is false. He never did, from the Record.

Exhibit P10, a confession, had fixed the Appellant to the alleged crimes. It is therefore not correct for the Appellant’s counsel to submit, as he did, that because the PW1 admitted seeing the Appellant for the first time at the trial Court it was “Impossible and doubtful” that the Appellant made his confessions in Exhibits P10 and P12.

It is similarly incorrect for the Appellant’s counsel to have submitted (in paragraph 6.02 of the Appellant’s Brief) that identification parade was “necessary and must be conducted” in view of the evidence of the PW.1, the victim; notwithstanding the Appellant’s own confession fixing him to the alleged offences. No issue was raised or made that Exhibit P10, recorded by PW3 and counter-signed by a superior police officer, was oppressively recorded or extracted from the Appellant; or that it was non est factum. It was not also retracted.

The making of Exhibit P10 was not in anyway, allegedly, offensive and/or contrary to Section 29 of the Evidence Act, 2011.

I think I should point out that, the mere fact that the Appellant, as DW1 in a clear afterthought, stated without proof that he was forced to thumbprint Exhibit P12 does not render Exhibits P10 and P12 inadmissible against him. The mere fact of his resiling from Exhibit P12 does not necessarily render Exhibits P10 and P12 inadmissible; R. v. KANU (1952) 14 WACA 30; EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; NWAEBONYI v. THE STATE (1994) 4 NWLR (pt. 343) 138 at 150 – 151.

I find no basis for this appeal, even if it were competent. I would have dismissed it in its entirety, in tandem with my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JSC, and in agreement with the Respondent.

ADAMU JAURO, J.S.C.: I had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC. I am in agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.

​I adopt the said judgment as mine in dismissing the appeal. Appeal Dismissed.

Judgment

YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of the appeal filed by the Appellant Abbah Micheal against the decision of the Ondo State High Court of Justice Akure Division delivered on the 17th day of January, 2018. The Appellant was the 2nd Defendant charged along with 3 others before Justice W. R.

Olamide by way of an information for the following offences: (1) Conspiracy to commit armed robbery contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation. (2) Conspiracy to commit murder contrary to and punishable under Section 324 of the Criminal Code Cap 37 Laws of Ondo State 2004. (3) Armed robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap R11 Vol. 14 Laws of the Federation. (4) Murder contrary to Section 316 and punishable under Section 219 of the Criminal Code, Cap 37, Vol. 1 Laws of Ondo State of Nigeria, 2006.

The fifth count which deals with receiving stolen property concerns only the 4th defendant Mr. Adeniyi Friday who was discharged and acquitted at the trial while the Appellant and two others; 1st and 3rd Accused Persons were found guilty convicted and sentenced to death by hanging.

The facts upon which the case was founded leading to the trial and conviction of the Appellant is that on the 31st day of August, 2013, the Appellant along with 2 others namely: (1) Olowodagba Tosin (2) Ameh John, that the 3 of them conspired together while being armed with a gun and other dangerous weapons along Bolorunduro-Ogbese road robbed one Pc. Edema Omoniyi of an unregistered Honda motorcycle who was shot and killed in the process of the robbery.

At the end of a full scale trial where two witnesses testified for the prosecution and 7 for the defence, the Learned Trial Judge in a considered judgment found the Appellant guilty as charged convicted and sentenced him thus: “You Abbah Michael, the sentence of the count on you is that you be hanged by the neck until you be dead may the Lord have mercy on your soul.” ​ This appeal is therefore against the above verdict. The Notice of Appeal containing 6 Grounds of Appeal was filed on 12th July, 2021 after obtaining leave for extension of time within which to appeal from this Court.

Consequently, the appeal was eventually entered on the 13th day of September, 2021.

The Appellant’s Brief of Argument filed on 12th October, 2021 settled by Oladele Ojogbede, Esq., the learned Counsel formulated three issues for determination, thus: ISSUES FOR DETERMINATION (i) Whether the learned trial judge was not in error to have convicted the Appellant for the offence of criminal conspiracy to commit armed robbery and murder, despite the apparent failure of the prosecution to establish the meeting of minds as between the Appellant and other Defendants to commit such crimes? (Distilled from Ground 2 of the Grounds of Appeal) (ii) Whether the learned trial judge was not in error when he relied heavily on Exhibit 6 (the confessional statement of a co-accused person) which the Appellant did not adopt to convict him for the offences of armed robbery and murder despite the absence of an eye witness account and the material contradictions apparent in the evidence of the prosecution witnesses? (Distilled from Grounds 1, 3 and 4 of the Grounds of Appeal) (iii) Whether in the overall circumstances of this case, the prosecution can be said to have proved its case against the Appellant beyond all reasonable doubt in the light of the weak unsubstantiated and unproven evidence adduced at the trial? (Distilled from Grounds 5 and 6 of the Grounds of Appeal).

ARGUMENT OF APPELLANT COUNSEL Learned Counsel to the Appellant submitted that there was no sufficient evidence of conspiracy between the Appellant and the other persons alleged to be involved in the crime, in this regard the holding by the trial Judge was in the realm of speculation; submits that a Court of Law is not expected to speculate but must decide issues on the strength of evidence presented before it. See Okoro V. State (1964) 1 All NLR 423. Counsel submits that there are doubts as to identification of the Appellant from the evidence of PW1 who the Appellant said he does not know.

Peter Ogwuche who was not called as a witness during the trial but whose statement is contained in the proof of evidence would have been the ideal witness but his statement according to counsel contradicted the evidence of PW1 received in Court. On issue two (ii), the learned Appellant Counsel submits that the statement of DW1, Exhibit 6 is not binding on the Appellant not having adopted same. See Titilayo V. State (1998) 2 NWLR (Pt. 537) 235, Tanko V. State (2008) 16 NWLR (Pt. 1114) 628.

Submits further that by virtue of Section 29(4) of the Evidence Act 2011, where an accused person makes a confessional statement in the presence of a co-accused person which incriminates the co-accused person, such a statement cannot be taken into consideration by the Court as against such a co-accused unless he adopted the statement either by words or conduct. In this case, according to Counsel, the Appellant has not adopted Exhibit 6 so it should be discountenanced against him.

The learned Appellant’s Counsel argued that the only thing linking the Appellant to the offences charged is his retracted confessional statement. And it is trite law that a Court does not convict on a retracted confession. Unless it passed the test set up in Gabriel V. State (1989) NWLR (Pt. 122) 457.

Submits that the offence of murder has not been proved beyond any reasonable doubt because, whereas the medical report, Exhibit 1 suggested that the deceased died of gunshot injuries, this was contradicted by the evidence of PW2 who contended that he went to the hospital to see the corpse of the deceased, “there were matchet cuts round his body”. Counsel submits further that having regards to the contradictory nature of this evidence the real cause of death remain mysterious and has not been conclusively established: whether he was killed by gunshot or by matchet cuts.

So the trial Judge could not have safely convicted the Appellant without causing damage to the cause of justice. In the light of which the Appellant’s Counsel submits that the finding of the trial Court that the Appellant and others murdered the deceased is perverse. Submitting on the third and last issue, the Appellant’s Counsel submits that the failure to call one Dr.

Osason the person who prepared the medical report tendered and admitted as Exhibit 1 has denied the Appellant the opportunity to cross-examine the Doctor, by implication amounts to denial of fair hearing Counsel cited Section 36(6) (d) of the 1999 Constitution and urged this Court to nullify the entire proceedings on that account and strike out Exhibit 1. See Shofolahan V. State (2013) 17 NWLR (Pt. 1383) 295, Esen V. The People of Lagos State (2014) 2 NWLR (Pt. 1390) 114 and Al-Mustafa V. State (2013) 17 NWLR (1383) 365.

Submit further that the evidence adduced at the trial is so weak and unsubstantiated that no reasonable Tribunal would feel safe to convict on them. That there are contradiction in the case to the extent that it is not certain whether the offence was committed in the morning or in the evening even the circumstance leading to the recovery of the gun and the precise location where it was recovered was in the realm of speculation; and conjectures. This contradictions should not be ignored.

On the whole, learned Appellant’s Counsel urged this Court to resolve all the three issues in favour of the Appellant. RESPONDENT’S BRIEF OF ARGUMENT Shehu Wada Abdullahi, Esq., on behalf of the Respondent prepared the Brief of Argument filed on 2nd November, 2021 where he donated a sole issue for determination to wit: “Having regard to the facts of the case and the evidence led by the prosecution, whether the trial Court was not right in convicting the Appellant.”

Learned Respondent’s Counsel submitted that this sole issue encompasses all matters in this appeal. Counsel submits that the facts of this case revealed that there was robbery on 1st September, 2013 as can be gathered from Exhibit 9 which is the Appellant’s confessional statement though retracted but the Court according to the Respondent’s Counsel was right in relying on it to convict the Appellant being a free and voluntary confession which has met all the requirements of law stipulated in Sale V. State (2020) 1 NWLR (Pt. 1705) 205.

Counsel submits that at the trial the offence of conspiracy to commit armed robbery and murder has been successfully proved. After all to prove conspiracy, it is not necessary that there should be direct communication between each and every other conspirator, provided that the criminal design alleged is common to all. Okoh V. State (2014) 8 NWLR (Pt 1410) 502.

Submit that from the contents of Exhibit 9 it is clear that there is a common intention to commit robbery as the Appellant and his cohorts perfectly planned and executed their motive and intention. ​On the offence of armed robbery, learned Counsel submits that by the evidence adduced at the trial Court particularly Exhibits 2, 3 and 17 proves that armed robbery actually took place for which the Appellant had confessed by virtue of Exhibit 9.

PW1 testified that the persons who perpetrated the act were armed, more especially when regard is had to the fact that the victim of the robbery evidence have shown died of gunshot as per Exhibit 1 (Autopsy report) admitted without any objection. The Court is bound to rely on such document. It has also been proved that the intentional act of the Appellant caused the death of the deceased.

In short, Counsel to the Respondent submit that conspiracy was proved by circumstantial evidence and the Appellant’s confessional statement. ​ Learned Counsel also stated the ingredients for the offence of armed robbery and related them to the evidence on record either in the Exhibits tendered or the oral evidence of witnesses and the Appellant’s confessional statement just in the same vein, Learned Respondent’s Counsel submit that the prosecution has succeeded in establishing all the ingredients needed to convict for armed robbery as well as murder.

Quoting copiously excerpt of the evidence adduced at the trial as well as the contents of the confessional statement of the Appellant, counsel also submitted that a Court of law is entitled to convict even on retracted confession as long as it is properly done. Moreover retraction of confession affects only the weight to be attached to the document. Supporting this stand with some judicial authorities among which are Kanu & Anor V. King (1952) 14 WACA p. 30, Mbenu V. State (1988) 3 NWLR (Pt. 84) and Egbogbome V. State (1993) 7 NWLR (Pt. 306)383.

On whether the trial Court relied on Exhibit 6 statement of a co-accused to convict the Appellant, Respondent’s Counsel submits that the current position of the law is that the Court will look at the incriminating statement of the co-accused and see whether there is a link between it and other evidence in the case. This much was enunciated in Adeleke V. State (2013) LPELR 20971 (SC) 35 and Ajaegbo V. State (2018) 11 NWLR (1631) 484.

On the basis of the foregoing, the Respondent urged this Court to dismiss the appeal for being unmeritorious and frivolous and then uphold the conviction of the Appellant. RESOLUTION OF ISSUES Upon the review of the arguments and submission of the learned Counsel for the Appellant and Respondent in their respective briefs; I find the sole issue for determination formulated by the Respondent’s Counsel more comprehensive and sufficient enough to resolve the entire appeal one way or the other.

The issue goes thus: “Having regard to the facts of the case and the evidence led by the prosecution, whether the Trial Court was not right in convicting the Appellant.” It is indeed the law that where the commission of an offence is in issue in any criminal proceedings the only thing that will suffice and ground a valid conviction is that the allegation must be proved beyond reasonable doubt.

The Appellant was proceeded against 4 (four) distinct heads of charges name: (1) Conspiracy to commit armed robbery (2) Conspiracy to commit murder (3) Armed robbery and (4) Murder. ​ Whenever a person is charged for conspiracy to commit an offence along with the commission of the substantive offence the proper approach by the Court in resolving the charges is to first deal with the substantive offence or charge and then proceed to determine whether conspiracy has been proved or can be inferred from the circumstance. Osetola V. State (2012) 17 NWLR (Pt 1329)251, Jimoh V.

State (2014) 10 NWLR (Pt 1414) 105. Starting with the offence of armed robbery, the law is settled as to what constitute armed robbery; it simply means stealing plus violence in the words of Nnaemeka Agu JSC, in Aruna VS. State (1990) NWLR (Pt. 155) 125, “Armed robbery means simply stealing plus violence used or threatened” Mohammed V. State (2022) LPELR 57830 (SC), Okobi V. State (1984) LPELR 2453 (SC). For there to be a conviction on a charge of armed robbery, the following three ingredients must be established.

Namely: (1) That there was a robbery or series of robberies. (2) That the robbery was an armed robbery (3) That the accused while with arms participated in the robbery. See Bozin V. State (1985) 799 SC and Barnabas V. State (2022) LPELR – 58244. The fact that robbery had taken place is simply not in doubt here as per the evidence of PW1 Sgt.

Nurudeen Adegboyega, he testified as one of the police officers who investigated the offence and that their investigation established “that the 1st, 2nd and 3rd Defendants (2nd defendant is the Appellant here) jointly carried out the operation which led to the death of the deceased Mr. Edema Omoniyi, a police officer attached to Bolorunduro police station, the crime was committed on the 31st August, 2013 between 8:00pm and 9:00pm when the deceased was going home after work.

This piece of evidence and the recovery of the weapon of offence from one of the suspects coupled with the contents of the Appellant’s confessional statement clearly suggest and conclusively establish armed robbery from which a human being was killed occurred on 31/8/2013 along Ogbese/Bolonduro road, Akure. ​ What we are faced with in this appeal in addition to conviction for armed robbery there is also a conviction for murder, at the base of it all is the notorious fact that in a trial for murder, the prosecution must prove its case beyond reasonable doubt and in so doing the essential ingredients must be made out.

These essential elements are: (1) That the death of a human being has actually taken place. (2) That the death was caused by the accused. (3) That the act was done with the intention to cause death or that the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act. In proof of those elements, the prosecution could rely on direct eye witness account of the incident, voluntary confessional statement or circumstantial evidence. See Kaza V. State (2008) 7 NWLR (Pt. 1085) 125 163, Oludamilola V.

State (2010) 181 LRCN 1 at 16, Mustafa Mohammed & Anor V. State (2007) CRCN 110 at 125 and Adio V. State (1986) 2 NWLR (Pt. 24) 581. See also Ugochukwu Okereke V. State (2016) LPELR 40012 (SC).

From the records of this appeal, it is obvious that the State relied in proof of the case against the Appellant on both circumstantial evidence and confessional statement on the basis of which the trial Court convicted the Appellant who was the 2nd accused at the trial Exhibit “9”. ​ The Appellant’s Counsel complained that the Appellant had retracted his confessional statement and did not adopt the statement of the first defendant as would have entitled the learned trial Judge to rely upon and find the Appellant guilty of the offences charged.

The learned trial Judge stated in his judgment that notwithstanding the retraction the Court could still rely on the confessional statement to convict the Appellant where the confession is cogent and unequivocal and where it passes the credibility test enunciated in Madjemu V. State (2001) 9 NWLR (Pt. 718) 349 and several other cases including Taye Ikujuni V. State (2016) LPELR 41343 (CA).

It is also clearly on record that the lower Court in its judgment actually subjected the Appellant’s retracted statement to the credibility test in addition to credible corroboration found in the testimony of PW1 and evidence of other defence witnesses which convinced the trial lower Court that the retraction was merely an afterthought.

The lower Court found that one Edema Omoniyi actually died from gunshot injuries which was obviously inflicted from behind by a third party and evidence have shown only the Appellant and the other suspect perpetrated the act. ​ Let me even add that there is evidence that apart from the gun held by one of the conspirators during the robbery others including the Appellant had some matchet/wood therefore, the evidence that the corpse of the deceased contained matchet cut in addition to gunshot wounds is consistent and credibly worthy of belief.

After all, PW2 only said he saw matchet cut on the body of the deceased but did not say as much as those cuts actually cause his death. There is therefore no contradiction between the evidence of PW2 and the Doctor report, Exhibit I on the cause of death. The lower Court has done pretty well in the process of the evaluation of the evidence adduced before it which in any case is the primary responsibility of the trial Court in this regard.

There is no reason for this Court to interfere with the evaluation and ascription of probative value done by the trial Court as there is nothing perverse in the exercise carried out by the lower Court. See Oke V. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332. The Appellant Counsel condemned the evidence of PW1 and challenged its efficacy based on the argument that it has contradicted the statement of one Peter Ogwuche attached to the proof of evidence who infact did not come forward to testify. Counsel contended that the contradiction was material just as much as the failure to call Mr. Ogwuche.

This submission is absurd because contradiction can only be said to exist in a party’s case where evidence of two witnesses go against one another head to head not when the evidence of a witness goes against the statement of somebody who did not testify as a witness. See Zakirai V. Mohammed & Ors (2017) LPELR – 42349 (SC). Secondly, the law does not impose on the prosecution to call a host of witnesses in order to prove its case. All it needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter.

It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Olayinka V. State (2007) 9 NWLR (Pt. 1040) page 561 and Odili V. The State (1977) LPELR-2221 (SC).

Moreover, only evidence duly adduced and received in the course of hearing a matter in Court that will make or mar the prosecution’s case, not statement of any other person merely attached to the proof of evidence. ​ But what is it that the PW1 told the Court in his evidence which the Appellant is saying is not sufficient to convict or that the trial Judge relied on confessional statement of the 1st defendant to convict the Appellant as there was no evidence against him. The PW1 Sgt.

Nurudeen Adegboyega, a police Sergeant attached to the homicide section of the State C.I.D, his evidence as per the records is that on the 1st day of September, 2013, he was at home when the O. C. homicide DSP John Amubieya called him and asked him to report to the office, at the office he was informed that somebody was robbed and killed, his motorcycle taken away.

The A.C.P ordered them to move to the crime scene at Ogbese/Bolonduro, which they did, based on the information at their disposal they arrested the Appellant and the accused person both of whom denied the allegation initially he went on to add that they recovered the motorcycle snatched from the deceased victim of the robbery.

The 3rd accused person was arrested later, all the three suspects including the Appellant confessed to the crime, their various statements were read over to them they agreed it was correct and signed same while the recorders counter-signed, PW1 said their investigation further confirmed that the Appellant and the 1st and 3rd accused persons jointly committed the robbery and the murder.

The weapon of offence was recovered from one of the suspects who operated together with the Appellant, a locally made gun, medical report on the cause of death were all tendered and admitted without any objection while PW2 confirmed that he was the person who as relative to the deceased identified his corpse. These pieces of evidence no doubt satisfied the requirement of establishing that a human being had died which invariably provided the additional pieces of evidence with which the veracity of the Appellant’s confessional statement can be judicially tested.

The Appellant has challenged the reliance by the Court below on Exhibit I, the medical report on cause of death on grounds of the absence of the maker and that there were inconsistencies on whether the deceased died of gunshot or matchet cuts. It is important to note that though desirable, a medical report is not sine qua non in determining the cause of death in a case of murder where there are other pieces of evidence upon which the cause of death can be inferred to the satisfaction of the Court. See Joseph Bille V. The State (2016) LPELR 40832 (SC), Alarape & Ors V.

The State (2001) 5 NWLR (Pt 705) 79, Adekunle V. State (1989) 5 NWLR (Pt. 123) 505. See also Onitilo V. The State (2017) LPELR 42576 (SC).

What is most remarkable is that the medical report, locally made shotgun with the empty shell casing, the confessional statement of the Appellant were tendered and admitted without any objection even with respect to voluntariness of the confessional statement because Appellant’s Counsel withdrew his objection to the admissibility of the Appellant’s confessional statement, just about when a trial within trial to determine its voluntariness was about to commence.

See page 35 of the records of appeal therefore the Appellant’s two extra-judicial statements were then admitted and marked Exhibits 8, 9 while the confessional statement/attestation form Exhibit 10 with this Exhibit in place, the trial Judge does not need Exhibit 6, statement co-accused, to determine the culpability of the Appellant. ​ The evidence given against the Appellant was never challenged or controverted during cross-examination, appellant did not ask one single question to challenge or controvert the evidence that he participated in the crime or that he voluntarily made a confession, having not led any cogent and compelling evidence in his defence, the law is trite that the Court is entitled to belief and rely on such evidence in coming to its verdict.

State V. Oray (2020) 7 NWLR (Pt 1722) 130, Igwe V. People of Lagos State, just like my noble brother Habeeb Adewale Abiru JCA wondered in the unreported sister case of Olowodagba Tosin V. The State, Appeal No. CA/AK/406C/2019, Akure Division delivered on 20th June, 2022 to which I fully concurred, my Lord observed thus: “All the queries raised by Counsel to the Appellant in his brief of argument against the evidence of the first prosecution witness were present and available to Counsel at the time of cross-examining the witness, but not one of the queries was asked the witness.

Counsel obviously forgot that the proper state for discrediting the case of the Respondent and the prosecution witness is not in the address of Counsel or the brief of argument on appeal but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever prosecution witness had placed in evidence but certainly not on appeal as counsel sought to do. Balogun V. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro V. State (2012) 1 SC.” ​In criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination.

Where the evidence of a witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal, per Supreme Court in Igwe V. People of Lagos State (supra) pages 451-452. Exhibit 9 is the confessional statement of the Appellant like I observed earlier it was admitted without any objection and the Appellant Counsel did not cross-examine the PW1 through whom the Exhibit 9 was tendered.

Meaning that the appellant has accepted the truth of the evidence of the witness on the fact that the confessional statement was indeed made voluntarily by the appellant. See Esene V. State (2017) 8 NWLR (Pt. 1568) 337, Isah V. State (2018) 8 NWLR (Pt. 1621) 346, Egba V. State (2019) 15 NWLR (1695) 201.

Now, this is what the appellant said in the confessional statement: “I of the above name and address voluntarily elect to state as follows: that I am a native of Owukoa in Ogbadibo local government area of Benue State. My father’s name is Ichuk Micheal while my mother’s name is Victoria Micheal both living at Owukpa village in Benue State. I attended Ejah Primary School Owukpa and stopped at primary 5. I did not further my education. It was Mr.

Godwin Itudo that brought me to Bolonduro and I have served him for three years before he signed me with one Sunday ‘m’ living at Bolonduro to learn operator. I know Ameh John for the past two years and both of us live in the same house, I also know Tosin Olowodagba since 2010 at Ogbese, he always visited me at Bolondure but he has been sleeping with us since April of this year. It was Tosin that informed me that his boss living at Ikare said he should go and stole the motorcycle, that he alone could not do the job alone that myself and Ameh John should followed him to the operation.

On Saturday 31/8/2013 at 9:00pm, three of us moved to Bolonduro/Express road and hide in the bush waiting for empty okada operator, we did not attack any okada operator that carried passenger. Tosin carried gun, Ameh John carried cutlass and wood while myself also carried wood.

Immediately decease was coming and saw him alone not carried passenger, Tosin rushed out from the bush and shot the deceased with the gun, he quickly rushed back to the bushed and hide the gun then myself and Ameh returned to bolonduro while Tosin ride the motocycle to Ikare-Akoko to meet his boss name Adeniyi Friday ‘m’. We all agreed that Tosin should sell the motocycle at rate of N60,000 but he gave us condition that he would take N30,000 and give Ameh John and myself N15,000 each.

The gun belong to Tosin and says that it was given to him by his boss Adeniyi Friday ’m’ living at Ikare-Akoko, this is my first operation with Tosin and I have never killed anybody in my life. I don’t know where Tosin use to get bullet but he told us that he always get it from his boss at Ikare. Signed & Thumb printed 4/9/13.” The evidence contained in this statement is consistent with the contents of Exhibit 1, the medical report, agrees substantially with the evidence of PW1 and from it are found all the elements constituting the offences of armed robbery, murder and criminal conspiracy.

I am of the firm opinion that the Appellant has not given any cogent or compelling reason why we should temper with the findings of the lower Court suggesting that the Respondent has made out a good case proving the allegation against the Appellant.

The overall circumstance of this case where 3 people including the Appellant came together to do some illegal acts to commit armed robbery and murder on 31/8/2013 along Bolnduro/Ogbese way Akure, necessarily imply conspiracy, the Trial Court was therefore right in arriving at the conclusion and drawing inference from the established facts that the Appellant is guilty of conspiracy.

The law is well settled that proof of the offence of conspiracy is a matter of inference drawn from circumstances under which the principal offence was committed; the Court is entitled to draw inference from facts and evidence adduced before it. See Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421 and Adebayo V. PDP (2013) 17 NWLR (Pt 1382) 1.

I find the inference drawn and relied upon by the trial Court in this case, very reasonable and in accordance with the evidence led by the parties in that the action of the Appellant with his cohorts which led to the death of the deceased in the cause of committing armed robbery was in furtherance of an agreement between them especially when regard is had to the evidence that after shooting the deceased, the culprits stole and sold his motorcycle to the 3rd accused person Mr. Adeniyi Friday who testified as DW4.

By his own admission, the Appellant confessed that he was given N15,000.00 from the proceeds of the sale of the motorcycle. See Exhibit 9. There is therefore no doubt whatsoever that the Appellant conspired with the other suspects, and committed the offences of armed robbery and murder for which they were tried and rightly convicted. On the whole, I find no merit in this appeal. It is hereby dismissed. The judgment of the Ondo State High Court Akure delivered on 17th January, 2018 by Hon. Justice W. R. Olamide in Suit No AK/8C/2015 is hereby affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have the opportunity of reading in draft the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA in this appeal. While the law is settled to the effect that the onus of proof is on the prosecution to prove its case beyond reasonable doubt, it is expected of the defendant to introduce reasonable doubt as it were to the case of the prosecution.

This the accused person or defendant can do by controverting the case of the prosecution and adducing evidence to challenge the same and or by establishing his (accused person or defendant) own defence. Where as in the instant appeal, the Appellant offers no credible explanation to the allegation(s) against him or makes no effort as it were to controvert and successfully challenge the case of the prosecution, any attempt by such accused person or defendant to do what he ought to have done at the trial Court, on appeal would definitely be of no moment. See the case of BAKARE V.

STATE (1987) LPELR-714(SC). I am in agreement with the position of his Lordship in the leading judgment that the Appellant has failed to show why this Court should interfere with the judgment of the lower Court convicting and sentencing him (Appellant) of/for the offences preferred against him in the information on which he was tried. I too therefore find this appeal to be without merit and accordingly dismiss the same.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusion reached therein. I have nothing more to add.

Judgment

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): In the judgment of the Adamawa State High Court, (hereafter referred to as the lower Court) delivered on 25/2/21 by Abdul-Azeez Waziri, J., the Appellant was convicted and sentenced to death for conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, (LFN) 2004. The Appellant was charged and tried alone while the two (2) others were at large.

At the trial, the prosecution called three (3) witnesses, PW1 – PW3 in proof of its case and tendered two (2), Exhibits “A1” & “A2” respectively. In his defence, the Appellant testified as the DW1 and called four (4) witnesses who testified as DW2 – DW5. At the close of the trial, the trial Court delivered judgment, convicted and sentenced the Appellant to death by hanging. Dissatisfied with the decision the Appellant appealed to this Court.

The background facts are that the Appellant on or about the 26th day of December, 2015 at about 21:30 hours at Tingno, in Lamurde Local Government Area of Adamawa State, with four (4) others agreed to do an illegal act, to wit: rob with offensive weapons such as guns, and knives and did rob Alhaji Samaila Yahya and Alhaji Sani Yahya of the sum of about N1,000,000.00 cash, recharged cards valued at about N1,000,000.00 and a laptop valued at N70,000 while so armed in pursuance of the said agreement.

Upon arraignment, the Appellant had the two count charge read, interpreted and explained to him in Hausa language. The Appellant understood and pleaded not guilty. The Prosecution called three (3) witnesses i.e Alh. Samiala Yahya, Daniya Yahya and Sgt. Usman Sanda who testified as PW1, PW2, and PW3 respectively and tendered Exhibits “A1” and “A2’ the Extra- judicial cautionary statement of the Appellant was admitted in evidence as Exhibits after a trial within trial was conducted. The prosecution thereafter closed its case.

The Appellant testified as DW1 and called four (4) other persons who also testified as DW2 – DW5 respectively and thereafter closed his case. In the judgment of the trial Court, the Appellant was convicted and sentenced to death by hanging.

​The Appellant formulated a sole issue for the determination of the appeal.

“Whether the trial Court was not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy, and convicted and sentenced the Appellant to death? (This issue has been distilled from Grounds 1 – 8 of the Notice of Appeal) The Respondent on its part also formulated a sole issue for the determination of the appeal as follows: – “Was the learned trial judge not right to have convicted and sentenced the appellant based on the evidence adduced before him, having the prosecution (sic) proved all the essential ingredients of the offences charged? (This issue is distilled from grounds 1 – 8 of the Appellant’s grounds of appeal) ​In arguing the appeal, the learned counsel to the Appellant A.

G. Anafi, Esq., adopted and relied on his brief of argument filed on 26/10/2021 and deemed properly filed and served on 2/2/2022 as his argument in this appeal; in urging us to allow the appeal, set aside the conviction and sentence by the trial Court and discharge the Appellant. In arguing his sole issue, the learned counsel submitted that the trial Court was wrong when it held that the Respondent proved against the Appellant beyond reasonable doubt the offences of armed robbery and conspiracy to commit armed and convicted and sentenced the Appellant to death.

See page 163 of the printed records of appeal. It was submitted also that the evidence led by the Respondent and relied upon by the trial Court did not establish beyond reasonable doubt that the Appellant committed the offences of armed robbery and conspiracy. It was made out that an accused person standing trial is presumed innocent until proved guilty and the prosecution has the ultimate burden of proving the guilt of an accused person in a criminal trial. The standard required to discharge this burden is proof beyond reasonable doubt.

See SECTION 36(5) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED); SECTION 135 OF THE EVIDENCE ACT, 2011; STATE V. ONYEUKWU (2004) ALL FWLR (PT. 221) 1388, 1425; and IGABELE V. STATE (2004) 15 NWLR (PT. 896) 314, 344. ​It was further submitted that there are three (3) methods of proving the guilt of an accused person. These are by a confessional statement of an accused person voluntarily made; by circumstantial evidence, and by direct evidence of eyewitnesses. See FAMUYIWA V.

THE STATE (2018) 5 NWLR (PT. 1613) 515 AT 534 C ALSO REPORTED AT (2017) LPELR – 43836 (SC), IGABELE V. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR V. THE STATE (2014) LPELR – 23064 (SC), EMEKA V. THE STATE (2001) 32 WRN 37, 59; and OKUDO V. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236D. The learned counsel to the Appellant submitted that the Respondent failed to lead any cogent and compelling evidence in support of the Information filed before the Trial Court. We were referred to the essential elements of the offence of armed robbery. See ADEKOYA V. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO V.

STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO V. STATE (2014) 12 NWLR (PT. 1424) 613, ADEKOYA V. STATE (SUPRA) and IKARIA V. STATE (2014) 1 NWLR (PT. 1389) 638. Further, that PW1 – PW3 failed to link the robbery incident to the Appellant. It was contended that the three (3) essential elements or ingredients for the offence of conspiracy to commit armed robbery must co-exist and where one of them is absent the charge against the accused person cannot be said to have been proved. See USUFU V. THE STATE (2007) 3 NWLR (PT. 1020) 94 AT 113 – 114 H -1.

It was made out that, in the absence of any direct evidence, where the same set of facts are relied upon, if the essential elements of armed robbery are not established, a charge of conspiracy to commit armed robbery will fail automatically. See SALAWU V. THE STATE (2010) LPELR – 9106 (CA) and ARIBIGBOLA V. THE STATE (2010) LPELR – 9164 (CA). It was submitted also that a person cannot be convicted for conspiracy because one person cannot conspire with himself to commit a crime. The trial Court wrongly relied on Exhibits A1-A2 in convicting the Appellant for conspiracy and armed robbery.

See pages 153 – 154 of the printed records of Appeal. It was contended that the trial Court rightly found in the judgment that the Appellant resiled from Exhibits A1-A2 and that the law enjoins the trial Court to seek legally admissible independent corroboration before relying on the retracted confessions but, was wrong when it held otherwise. See, page 156 of the printed records of appeal.

It was contended further that it is an elementary principle of law that once an accused person denies making a confessional statement, it constitutes a retraction of such confession. Once a confessional statement is retracted, it remains admissible, nonetheless, such admissibility goes to the weight or probative value of evidence to be attached to such a confession. See ONAFOWOKAN V. STATE (1986) 2 NWLR (PT. 23) 496, BASIL AKPA V. THE STATE (2008) LPELR – 368 (SC), OCHE V. THE STATE (2006) LPELR – 11634 (CA), QUEEN V. ITULE (1961) 1 ALL NLR 462, ASANYA V.

STATE (1991) 3 NWLR (PT. 180) 422 and ONAFOWOKAN V. STATE (SUPRA). It was submitted that a Court of law can conveniently convict an accused person based on a confessional statement that is positive, direct and unequivocal. However, where an accused person retracts his confessional statement, such statement requires an independent corroboration which is distinct from and does not derive from the confessional statement itself. See OKOH V. THE STATE (2014) LPELR-22589 (SC), 27E – 28A, IFEDAYO V. STATE (2018) LPELR – 44374 (SC) 32 – 33, AZABADA V.

STATE (2014) LPELR – 23017 (SC) 14G – 15D and STATE V. MUHAMMED MASIGA (TSOLO) (2017) LPELR – 43474 (SC) 14D – 15C. It was submitted also that the trial Court should have sought legally admissible corroboration independent of Exhibits A1-A2 before convicting the Appellant and failure of the trial Court to seek an independent corroboration of Exhibits A1-A2 renders the same with little or no probative value. It was submitted further that Exhibits A1-A2, an alleged confession of the Appellant, was tendered in evidence by PW3 instead of Sgt.

Samaila Audu who recorded the statement, at page 103 of the printed records of appeal. See OLALEKAN V. STATE (2001) LPELR – 2561 (SC). It was made out that, the testimony of PW2 should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2 because it did not establish or link the alleged robbery to the Appellant and same is hearsay which is inadmissible. See KASA V. STATE (1994) LPELR – 1671 (SC) and IJIOFFOR V. THE STATE (2001) 9 NWLR (PT. 718) 371.

Further that the testimony of PW3 is irrelevant and lacks corroborative value because he did not investigate the case against the Appellant, but that one Sergeant Samaila Audu did and that it should be disregarded in the consideration of an independent corroboration of Exhibits A1-A2. See page 103 of the printed records of appeal.

It was submitted that the PW1 testified that the alleged robbery occurred at about 8:30 p.m and that he never knew the Appellant or the alleged robbers before the alleged robbery and that he could not have clearly identified the Appellant which created a doubt in the Respondent’s case. It was made out that an identification parade is not necessary in all cases but necessary where the accused was not arrested at the scene, where he denies taking part in the crime and the victim did not know the accused before the commission of the crime. See JAMES UFOR V.

STATE (2016) LPELR-40126(CA) and OKIEMUTE V. STATE (2016) LPELR – 40639 (SC). It was submitted that, considering the time of the alleged robbery incident and the other circumstances surrounding the said incident, the Appellant should have been properly identified. See also OKOH V. THE STATE (2008) LPELR – 8352 (CA), IN MUSTAPHA V. STATE (2008) WRN (VOL. 2) 76 AT 83, MARTINS V. STATE (1997) 1 NWLR (PT. 481) 355 AT 370 PARAGRAPHS B-G, GHOHOR V. STATE (2013) ALL FWLR (PT. 709) 1061 AND NWANKWO V. THE STATE (2017) LPELR – 42756 (CA).

It was made out that, having impugned the testimony of PW1 – PW3, as well as Exhibits A1 & A2, there is no other legally admissible evidence on record capable of supporting Exhibits A1-A2. See OMEGA BANK NIGERIA PLC V. O.B.C. LTD. (2005) 1 SC 150. It was submitted that this Court has power to expunge the inadmissible evidence from the record. See IFARAMOYE V. THE STATE (2017) LPELR – 42031 (SC) and ALADE v. OLUBADE (1976) 2 FNR 10 at 13.

It was contended that the independent corroboration required must be sourced from legally admissible evidence available before the Court and that the Court cannot consider pieces of evidence which are not legally admissible to make findings of fact. This makes Exhibits A1-A2 stand as a lone evidence against the Appellant, Exhibits A1-A2 cannot corroborate each other. See IMEPURUNGU V. THE STATE (2019) LPELR – 47047 (CA), MOHAMMED V. THE STATE (2019) LPELR – 47045 (CA), R V. SYKES (1913) 8 CAR APPEAL REPORT 233 and AKPAN V. STATE ​ (1992) 6 NWLR (PT. 248) 439.

See also pages 156 – 157 of the printed records of appeal. It was contended that PW3 did not testify that Exhibits A1-A2 was made in the presence of the Appellant’s lawyer or his relatives which makes Exhibits A1-A2 doubtful, ingenuine and unreliable. See OWHORUKE V. COP (2015) LPELR – 24820 (SC). It was submitted that there is a material contradiction in the case presented by the Respondent which should have been resolved in the Appellant’s favour.

The law is settled that the appellate Court and the parties are bound by the record of appeal as compiled, transmitted and certified by the appellate Court. See MAGAJI V. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) AND AGBO V. FRN (2013) LPELR – 22870 (CA). It was made out that there are material contradictions in the testimony of the witnesses of the Respondent which create some doubt, that the accused person, is entitled to benefit there from. See pages 92, 93 and 103 of the printed records of appeal. See also POPOOLA V. STATE (2013) LPELR – 21443 (CA) 12C – G, JIMMY V.

THE STATE (2013) LPELR – 20333 (SC) and AGBO V. THE STATE (2006) LPELR – 242 (SC). It was made out that the trial Court was wrong when it held that Appellant has graphically stated in Exhibits “A1- A2” how he was invited by one Ruben from the uncontroverted evidence of PW1 and PW2 and other co-accused persons killed and at large acted in concert and that the appellant was not standing trial for murder and alone which in error and should be set aside. See pages 159 – 160 of the printed records of appeal.

It was submitted that no legally admissible evidence was led before the Trial Court that established beyond reasonable doubt the guilt of the Appellant in relation to the offence of armed robbery. It was also submitted that in the absence of any direct evidence, where the same set of facts are relied upon and where the essential elements of armed robbery are not established, a charge conspiracy to commit that robbery will fail automatically.

The Appellant’s counsel submitted further that the trial Court erred in law when it convicted the Appellant for conspiracy on count 1 which is an agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. There must be two or more persons. See STATE V. YUSUF (2007) ALL FWLR (PT. 377) 1001 AT 1011 B – D, AGUGUA V. STATE (2017) 10 NWLR (PT. 1573) 254 AT 277G, SULE V. THE STATE (2009) 17 NWLR (PT. 1169) 33 AT 63 E-F, OGUGU V. STATE (1990) 2 NWLR (PT. 134) 539 AT 553 C–D, YAKUBU V. STATE (2014) LPELR – 22401 (SC) and YUSUF V. STATE (2012) LPELR – 7878 (CA).

It was submitted that the Respondent did not lead any evidence of common criminal intention formed between the Appellant and any other person to rob PW1. See OKEKE V. STATE (1999) 2 NWLR (PT. 590) 247. It was submitted further that none of PW1, PW2, PW3 and Exhibits A1-A2 established that the Appellant ever met and formed a common criminal intention with anyone for the prosecution of any unlawful purpose or to rob PW1. See ALARAPE V. THE STATE (2001) LPELR – 412 (SC). It was contended that, it is conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.

See BAKARE V. THE STATE (1987) 1 NWLR (PT. 52) 579; AND WUAM V. AKO (1999) 5 NWLR (PT. 601) 162. It was submitted further that where there is a doubt based on reason arising from evidence of the Respondent, doubt which a reasonable person might entertain, and which is distinct from fanciful or imaginary doubt should have resolved in favour of the Appellant. See UCHE V. STATE (2015) LPELR – 24693 (SC) AT 22-23 G – C, JUA V. STATE (2010) 4 NWLR (PT. 1184) 217 AT 243 AND JIBRIL V. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 AT 383.

It was submitted that the Respondent woefully failed to discharge the burden placed on it to establish the guilt of the Appellant on the allegations of offences of conspiracy and armed robbery. See ADEYEYE V. STATE (1968) NMLR 48 and OLUWATOYIN ABOKOKUYANRO V. THE STATE (2016) LPELR-40107 (SC), IDEMUDIA V. STATE (1999) 7 NWLR (PT. 610) 202 AT 215, ESANGBEDO V. STATE (1989) 4 NWLR (PT. 113) 57, SECTION 135(1) OF THE EVIDENCE ACT 2011, NWOSU V. STATE (1998) 8 NWLR (PT. 562) 433 AT 444 and AIGBADION V. STATE (2000) 7 NWLR (P.T 666) AT 704.

It was made out that the failure of the Respondent to link the Appellant to the robbery of PW1 with any legally admissible evidence, which is a vital element of the offence of robbery with which the Appellant was convicted for, created doubts in the case of the Respondent at the trial Court. The trial Court was in error to have resolved the doubts in favour of the Respondent instead of the Appellant. See SALE V. THE STATE (2016) 3 NWLR (PT. 1499) 392 AT 423 D – E AND 424 B – C.

Lastly, it was made out that it is settled law that any wrongful admission of, and reliance on, evidence will not constitute a ground for reversing a decision unless the party complaining can show as well that without such evidence, the decision complained of would have been otherwise. See BASSEY V. EKANEM (2001) 1 NWLR (PT. 694) 360 AT 378 F-G. Had the trial Court not admitted and placed much weight on the testimonies of PW1 and PW2 as well as Exhibits A1-A2, it would not have held that the Appellant was guilty of the offences with which he was charged.

That those inadmissible pieces of evidence seem to be the sole evidence that influenced the judgment of the Trial Court. See pages 152 – 163 of the printed records of appeal. In response, the learned counsel to the Respondent Z. Y. Usman, Esq., Senior State Counsel, Adamawa State Ministry of Justice adopted and relied on his brief of argument filed on 19/11/2021, deemed properly filed and served on 2/2/2022 in urging us to dismiss and affirm the judgment of the trial Court.

The Learned Senior State Counsel argued his appeal seriatim and submitted that the above issue formulated for determination by this Honourable Court, ought to be answered in the affirmative. It was submitted also that it is a constitutional requirement that, the prosecution must displace the presumption of innocence against the defendant as rightly pointed out by learned appellant counsel, this fundamental principle is displace once the prosecution prove its case beyond reasonable doubt, and not necessarily beyond all shadow of any doubt.

See FEKOLOMOH V STATE (2021) EJSC (VOL.165) PG. 82 PARAS B-D AT 107; BAKARE V STATE (1987) 3 SC 1, IORTIM V STATE (1997) 2 NWLR (PT. 490) 711, OKERE V STATE (2001) 2 NWLR (PT.697) 397 and EMMANUEL IKE VS. THE STATE (2011) 200 LRCN 143 AT 149 R. 9. See pages 152 – 153 of the printed record of appeal. It was submitted that from the totality of evidence available to the trial Court, that led to this appeal all the above three elements as far-reaching alluded above were intact.

It was made out that despite the prosecution witnesses whom the trial Court believed their testimony made the requirement of law to secure the conviction of the Appellant. See FEKOLOMOH V STATE (Supra) PARAS E-G AT 107; PER SAULAWA, ILORI V STATE (1980) 8-11 SC 18, EMEKA V STATE (2001) 14 NWLR (PT 734) 668, GODWIN IGABELE II VS THE STATE (2007) 2 NCC 125 R. 6, OGUNO V. STATE (2013)15 NWLR (PT. 13761)1, NIGERIAN NAVY V LAMBERT (2007)18 NWLR (PT.1066) 300 and EMEKA V. THE STATE (2001)14 NWLR (PT. 734)666.

It was submitted further that the contains of Exhibits A1 & A2 are cogent and compelling which were tendered and admitted in evidence after a mini trial was ordered and successfully conducted, same was fully corroborated by the evidence of PW1 & PW2 wherein it clearly linked the contributory factor of the Appellant. See pages 154-157 of the printed record of appeal.

It was contended that assuming but not conceding that Exhibits A1 and A2 needed an independent corroboration, the said confessional statement was not only corroborated but was also tested through trial within trial to see if there was anything outside the confessional statement to ascertain if truly same was made by the Appellant.

It was made out that even if the Appellant was convicted based on his extra-judicial cautionary statement alone after trial within trial the appellant was rightly convicted on the strength of his cautionary statement Exhibit A1 & A2 which at all material time its stating or suggesting that he committed the offences with which he was charged while armed with offensive weapons. See EDHIGERE VS THE STATE (1996) NWLR (PT 464) 1 AT P.10 PARAS B- C and BASIL AKPA VS THE STATE (2008) 163 LRCN 186 AT 192 R.9 at 203 JJ 208 A.

It was submitted also that the confessional statement doesn’t need any independent evidence to corroborate the confessional statement of the Appellant to squire his conviction as corroboration in this case may only be desirable and not mandatory. See AGU vs STATE (2017)10 N.W.L.R. PT 1573 PG 180 PARAS C- F Per M.D, EGBOGHONOME vs STATE (1993)7 N.W.L.R. (PT 309) 383, KIM vs STATE (1992) 4 N.W.L.R. (PT 233) 17, NNAMDI OSUAGWU vs STATE (2013) LPELR-19823 (SC) and KINGSLEY JOE ISONG vs STATE (2016) LPELR – 40609 (SC) and YUSUF V. STATE & ADESAKIN V.

STATE (2020) EJSC (VOL.135) PG. 154 PARAS D- E AT 169. It was submitted that the mere fact that the Appellant in his testimony as DW1 resile from making the statement in an open Court, has nothing to do with involuntariness or whatsoever and therefore the admissibility of the statement and the resolution of the Court in convicting him on the strength of his confessional statement. See TANKO VS THE STATE (2008) 16 NWLR (PT.1114) P.597 AT 604 PARAS B-E AT 627 and BASIL AKPA VS THE STATE (Supra) R.18. See also pages 83 – 85 of the printed record of appeal.

It was made out that, having become evidence, the Appellant can no longer say it is a worthless document during his appeal and to fault the trial Court as to why he was convicted on the strength of his voluntary confessional statement. See SHURUMO VS THE STATE (2001) 196 LRCN 199 R. 1. Also commenting on the use of confessional statement to prove the guilt of an accused person, the Supreme Court also stated it in the case STEPHEN OMOGA VS THE STATE (1997) 7 SCNJ 518 AT 529.

It was made out that the Respondent at the lower Court was able to lead credible and convincing evidence in establishing the ingredient of the offence of armed robbery against the appellant. See STATE vs EKANEM (2017) 4 NWLR (PT. 1554) PG. 85 AT 105 PARAS G-H. It was contended that it was obvious that the Respondent has led evidence at the lower Court to show that there was a robbery(s), the robbery was armed robbery and the Appellant was one of those who took part in the robbery.

It was contended further that based on the evidence of PW1, PW2 and Exhibits A1 and A2 above which is so glaring and left no doubts. See page 150 of the printed records of appeal. See also page 93 of the printed record of appeal and we were also referred to the cases of STATE V. IBRAHIM (2021) EJSC (VOL. 164) PG 132 PARAS H-C AT 154, OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360, ABIODUN V. STATE (2013) 9 NWLR (PT. 14358) 138, SUBERU VS STATE (2010) 8 NWLR (PT. 1197) AT 586 and ATTAH VS STATE (2010) 10 NWLR (PT. 1201) AT 190.

It was made out that the Court should discountenance with the submission of the Appellant at paras 4.1 to 4.5, on the grounds that the Respondent did not lead cogent and compelling evidence in proving the essential elements of the offence of armed robbery and rather hold that all the essential ingredients of the offence of armed robbery are intact and same has been discharged. Lastly, it was submitted that on issue of robbery, it is settled law that where a defendant is properly identified at the scene of crime as in the instance case. The Court can convict on same.

It was made out by the Respondent on what its need to prove or secure conviction on the offence of conspiracy to commit armed robbery against the Appellant are the ingredients of the offence. See OKOH V THE STATE (2014) 8 NWLR (PT 1410) 502 AT 523 3.24. It was submitted that the ingredients were established beyond reasonable doubt at the trial Court, and the Court aptly relied on and convicted the Appellant. It was also made out that the Appellant in Exhibits ‘‘A1 & A2’’ categorically stated the way and manner in which he participated in the said armed robbery.

See pages 83- 85 of the printed records of appeal. ​ It was submitted that Exhibits “A1 and A2” was admitted in evidence after trial within trial was conducted, the testimonies of PW1 and PW2, which in-turn the Court is allowed by law to convict him on same. See pages 157 – 162 of the printed record of appeal. It was contended the Respondent had proved the offence of conspiracy to commit armed robbery against the Appellant. See pages 157 to 162 of the printed record of appeal.

It was submitted that there was more than enough evidence which suggested that the offence of conspiracy was proved against the Appellant and the appellant was not the only one that participated in the commission of the crime. See pages 161- 162 of the printed record of appeal. It was submitted that there is material contradiction in the evidence of PW1, PW2 and PW3, it is not true and that evidence of PW1 and PW2 is firm and uncontradicted both in their evidence in chief and under cross-examination. See page 92 of the printed record of appeal.

It was submitted that the Appellant’s counsel in his submission at paras 4.33, that the trial Court was wrong to have mention the ingredients of murder in the consideration of an offence of conspiracy. It was submitted that, this submission was misconceived as such did not born from the printed record of appeal before the Court. It was made out that the learned Appellant’s counsel makes heavy weather on the trial Court admitting Exhibits “A1 and A2” through PW3 who was not the recorder of the statement that the argument is misleading.

See Sections 39, 40 – 50 of the Evidence Act 2011, a confessional statement can be tendered through a non-maker and it is admissible in evidence and can validly be acted on. See MICHAEL OLOYE V. THE STATE (2018) LPELR-44775 (SC) and JOHN V. STATE (2011) 18 NWLR (PT. 1278) 353 SC. See, also pages 98-102 and 103- 104 of the printed record of appeal. I have examined the sole issues as formulated by the respective parties for the determination of the appeal. They are similar but, differently worded.

I would reformulate the issue for the determination of the appeal thus: Whether from the circumstances of this case and the evidence adduced at the trial Court, the Court was right to have convicted and sentenced the appellant for the offences of conspiracy and armed robbery for which he stood trial? In criminal trials, the prosecution has the onerous burden of establishing the guilt of the accused person beyond reasonable doubt.

The learned counsel to the parties agreed that where there is an allegation of commission of a crime, the prosecution is expected to prove the commission of the offence beyond reasonable doubt. The term proof beyond reasonable doubt does not mean and is never interpreted to mean proof beyond all shadow of doubt. See EZEANI VS. FRN (2019) LPELR – 46800 (SC) P. 23, PARAS. A – C, his Lordship Okoro, JSC explained it thus: “The law is trite 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. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242) 170, AKINLOLU VS. THE STATE (2015) LPELR – 25986 (SC), OSENI VS. THE STATE (2012) LPELR – 7833 (SC), MILLER VS. MINISTER OF PENSIONS (1974) 2 ER P. 372.” See also STATE VS. ONYEUKWU (2004) LPELR – 3116 (SC) PP. 44 – 45, PARAS. G – E and AMEH VS. STATE (2018) LPELR – 44463 (SC) PP. 22 – 23, PARAS. E – A.

On the meaning of “proof beyond reasonable doubt” the Apex Court also held in NWATURUOCHA VS. THE STATE (2011) LPELR – 8119 (SC) P. 25, PARAS. C – D, (2011) 3 SCNJ P. 148; (2011) 6 NWLR (PT. 1242) 170), His Lordship Fabiyi, JSC explained it thus: “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.” See also OSUAGWU VS. STATE (2013) LPELR – 19823 (SC) P. 25, PARAS.

D – E, ADEKOYA VS. STATE (2017) LPELR – 41564 (SC) PP. 19 – 21, PARA. C, AYINDE VS. STATE (2019) LPELR – 47835 (SC) P. 16, PARAS. C – F and OFORDIKE VS. STATE (2019) LPELR – 46411 (SC) PP. 8 – 9, PARAS. C – B. To discharge the burden on the prosecution, it could be done by various ways, through: 1. Eye witness account of the crime, 2. Confessional statement and 3. Circumstantial evidence which irresistibly linked the accused person to the alleged crime.

The Appellant was charged and convicted for the offence of Criminal Conspiracy to commit Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R II Laws of the Federation 2004 (hereafter referred to as the Act), Robbery while armed with offensive weapons contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation 2004.

To succeed in a charge of Armed Robbery, it has been firmly established by a plethora of authorities that in order to secure conviction every single element or ingredients of the offence must be proved by the prosecution beyond reasonable doubt. Armed Robbery simply means robbery plus violence threatened or used. Before there can be robbery something must be stolen and it is the duty of the prosecution to prove the offence beyond reasonable doubt.

The prosecution must prove that the accused person stole something capable of being stolen and at the time of stealing, the accused threatened to use violence or used violence immediately before or after the time of stealing. The violence would be either on a person or on property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.

To establish armed robbery as it was made out by the parties, the prosecution must prove beyond reasonable doubt that there was a robbery or series of robberies and that the robbers were armed and the accused was the armed robber or one of the armed robbers. See F.R.N VS. YARO (2012) SCN 223 AT 236 – 237, OKANLAWON VS. STATE (2015) 3 SCN 359 and ISIAKA VS. STATE (2013) NCQR 1158. Going by the testimony PW1, stated thus:- “…On the 26/12/2015 at about 8:30pm I and my junior brother by name Alhaji Sani were coming from the shop where we sell handsets, recharge cards/provisions.

We met four persons two on each side and they stopped us. Three of the persons were armed with guns while the 4th person was armed with a knife. The accused person herein was one of the persons referred to here. They collected recharge cards totaling One Million Naira, raw cash totaling about seventy Thousand Naira realized from the sales of handsets/recharged cards and ‘provisions.

Also taken away from me is a laptop valued at N70,000.00 the accused person in spite of taking away the afforested items still insisted we should take them to my elder brother’s house the accused person fired a shot in the house, and all of us in the house lied down. My elder brother came out after hearing the shot and gunshot and accosted the accused person and we all stood up and arrested the three persons were taken to the police station at Tinkno, the two accused were lynched by the villagers at Police Station but the accused survived.

From there, he was taken to Lamurde Divisional Police Headquarters we couldn’t recover our stole items but only two guns and one knife was found on the accused.” See page 92 of the printed record of appeal. PW2 on his part stated thus:- “…on the 26/12/2015, I left my junior brothers in the shop and went back to the house.

I then opened my Radio and was listing to B.B.C Hausa service at 8:40pm then I heard a gunshot inside the house so I came out and I met the accused person standing with a gun so I grabbed him and we fell down together and the rifle fell down in the process and they are about 3 of them and it was dark then.

We then arrested the three of them and took them to the police out at Tinkno. Two out of the suspect were lynched at the police station and it is only the Accused person that survived….” (See page 93 of the record of appeal) The narration thus far by the PW1 and PW2 shows that there was a robbery which is superficially damning against the Appellant.

There is no contention as to whether there was a robbery and a careful examination of the case at the trial Court reveals the fact that armed robbery occurred, and the Appellant was among the Robbers armed that collected the properties of the victims which indeed was established beyond reasonable doubt, mainly by the oral testimony of the said PW1 and PW2.

I shall also reproduce the testimony of the Appellant in Exhibits “A1 and A2” which read thus:- “… I can remember last year in the month of December that is 2014 one Danjuma of Tinno Village via Cham district he used to sale herbal medicine at Cham, one day I went to buy some medicine from him we became friends and he collected my phone number which I also collected his own and we are communicating from there he called me one day and ask me to meet with him at one Village Gundili via Tinno district Lamured L.G.A Adamawa State which I agree.

On reaching there the said Danjuma called me a side and inform me that he is a Armed Robber and he want me to join him and his team.

I accepted because I am afraid of him and I don’t want him to know, after some month when I was at home one Ruben M. of the same address called on the phone and asked me to come to Tinno district because everyone is there except myself on reaching to Tinno, I meet the following – (1) Ruben M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos .M. of various address e all conspire an herd at the river side behind one Primary School, around 20:00hrs Danjima been the leader of the team went and brought three rifles, he gave one to Dan-fulani, one to Emos .M. and he also gave the remaining on to Ruben .M.

Ali was holding knife and they assign me to be the one that will hold money and properties when we succeeded from there Ruben .M. 21 told us that we are going to Robben some boys that has shop and there selling hand set at the markets immediately when the boys reached to were the rest of my team are hiding we got them arrested and took them to here house we ask the boys to lay down flat and any one of them try to move we will shoot him Dan-fulani .M. and Ali .M. when directly in to the main building which myself and Emos .M. who was holding rifle were Guarding two boy that were ask to lay down, after some few minute someone grab me from the back and start beating me, Emos .M. and Dan-fulani were also arrested at the scene and we wear beating by the mob which led to the died of Emos .M. instantly myself and Dan- Fulani .M. we were taken to the police station and the said Danfulani sustained high degrees of injuries which lead to his dead also at the police station while Ali .M. and Ruben took to the hills and escaped, I was taken to the hospital by the police and after my statement was obtained but I refused to confess and at the station I spent three days at the station before the case was transferred to C.I.I.D that what I have to say for now.” (See pages 83- 85 of the printed record of appeal).

By the above statement of the Appellant, it clearly suggested that the Appellant actively participated in committing the offence of armed robbery. It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR – 43603 (SC) P. 14, PARAGRAPH A-E.

His Lordship Sanusi, JSC clearly stated the position of the law thus: “A Confessional Statement simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended.

It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See ALABI V. STATE (1993) 7 NWLR (PT. 307) 5, FABIYI V. STATE (2015) 6 – 7 SC (PT. 1) 83, OSETOLA AND ANOR VS. STATE (2012) 6 SCNJ 321, NWACHUKWU VS. THE STATE (2002) SCNJ 230, DOGO V. THE STATE (2013)2-3 SC (PT.

III) 75 at 92 – 94.” The Respondent has strenuously contended before the Court that the Appellant confessed to the alleged offences in his extra-judicial statements Exhibits “A1 & A2”. The Appellant denied making Exhibits “A1 & A2”. In law, the denial may not help him as he can be convicted on the statement which he retracted. The law allows it. However, in law can the Appellant be convicted on the basis of Exhibits “A1 and A2” alone? In IMEPURUNGU VS.

THE STATE (2019) LPELR -47047 (CA), I restated the position of the law briefly as follows: “In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra-judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement, the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say.” See also AZABADA VS. STATE (2014) LPELR – 23017 (SC), STATE VS.

MUHAMMED MASIGA (TSOLO) 2017 LPELR – 43474 (SC).” The testimony of the PW1 and PW2 was sufficient corroboration of the Exhibits “A1 and A2”. In UDO VS. THE STATE (2018) LPELR – 43707 (SC) at P. 22, PARAS. A – B, his Lordship Rhodes – Vivour, JSC held that: “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.” The law is that the evidence of an eye witness is one of the best evidence to sustain a conviction of an accused person, an on the spot account of what an eye witness (PW1 & PW2) saw at the scene of the alleged offence, it is sufficient to sustain a conviction. See SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226) 73, AKINMOJU VS STATE (2000) 6 NWLR (PT. 662) 608 and AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171.

The PW1 and PW2 gave a clear and detailed account of what they saw at the scene. ​ The Appellant testified as DW1 and stated the fact he was invited by one Dauda for iron bending work and on reaching there he was arrested by the men and taken to State CID where he was tortured and unconscious and while on admission at the hospital, a paper was given to him by one of the IPO’s to sign else medication would not be given or administered on him which he did signed before he was arraigned at the trial Court.

Four (4) others testified at DW2 – DW5 give their testimony about the character of the Appellant. See pages 121 – 122 of the printed records of appeal. The statement of the Appellant to the police, Exhibits A1 and A2 is clear and leaves no room for doubt that he was one of the gang members. The confession of an accused person is usually the best evidence, coming from the horse’s mouth so as to say in a criminal trial.

An admission of having committed the offence is the best evidence in a trial and it plays a major role in the determination of the guilt of the accused person and the Court can rightly convict on the confession if it comes to a conclusion that the confession is voluntary. The testimony of the Appellant and his witnesses are afterthought and I according discountenanced. In the present case, the learned trial Judge after the trial within trial did hold that Exhibits A1 and A2 were voluntarily made, therefore the issue of the voluntariness does not arise here.

I would add on the effect of a confession of the truth. In TIRIMISIYU ADEBAYO VS. THE STATE (2014) LPELR – 22988 (SC) PP. 46 – 47, PARAS. E – B, His Lordship Ariwoola, JSC explained it thus: “On the confession of an accused person, this Court had held that the: “evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. See REP. VS.

CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA VS. THE STATE (1976) 12 SC 63 at 68, JIMOH YESUFU VS. THE STATE (1976) 6 SC 167.” INUSA SAIDU VS. THE STATE (1982) 4 SC 41 at 58 – 59. In OGOALA VS. THE STATE (1991), this Court per Olatawura, JSC (of blessed memory) stated that “a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused.” See OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 25 SC and OBOT VS. STATE (2014) LPELR – 23130 (CA).

On the offence of conspiracy, it is trite that the offence of conspiracy could be inferred since it is virtually impossible to prove criminal acts of the accused person by direct evidence done in pursuance of a criminal purpose in common in agreement with one another. The Appellant was charged with criminal conspiracy pursuant to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act (supra). Conspiracy generally has been variously defined by the Apex Court. In STATE VS.

SALAWU (2011) LPELR – 8252 (SC) PP. 38 – 39, PARAS E – A, (also reported in (2011) 18 NWLR PT. 1279 P. 580) His Lordship Muhammad, JSC defined it thus: “The general definition assigned to the word “conspiracy,” in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. Burton’s Legal Thesaurus, 4th edition.

In the Penal Code (PC) of the Northern Region of Nigeria, Cap. 89, Laws of Northern Nigeria (1963) under which the respondent was charged, Section 96 thereof defines “conspiracy” as follows: “(1) when two or more persons agree to do or cause to be done – (a) An illegal act; or (b) An act which is not illegal by illegal means.” See also KAYODE VS. STATE (2016) LPELR – 40028 (SC) P. 32, PARAS. A – B, IRENE NGUMA VS. ATTORNEY – GENERAL, IMO STATE (2014) LPELR – 22252 (SC) PP. 31 – 32, PARAS F – A; (2014) 7 NWLR (PT. 1405) P. 115, GABRIEL OGOGOVIE VS.

THE STATE (2016) LPELR -40501 (SC) P. 25, PARAS. A – C, OBIAKOR & ANOR VS. STATE (2002) LPELR – 2168 (SC) P. 13, PARAS. C – F and OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 29 – 30, PARAS. F – E. The trial Court was satisfied with the contents of Exhibits A1 & A2, the Appellant’s confessional statement, where he gave a graphic account of how he was introduce through a phone call and the role he played in actualizing their plan and robbed PW1 and PW2.

It could be rightly inferred that the Appellant and (1) Ruben .M. (2) Danjuma .M. (3) Ali .M. (4) Dan- Fulani .M. (5) Emos conspired to rob their victim PW1 and PW2. I agree with the submission of the learned counsel to the Respondent that the prosecution led cogent and compelling evidence to show that the Appellant acted in concert with others to rob their victims. The pieces of evidence and those of PW1 and PW2 remained uncontroverted by the Appellant. No doubt, the Appellant and others acted as one, with a common purpose and in agreement to commit armed robbery.

The trial Court was right to have held that the prosecution established the offence of criminal conspiracy against the Appellant. It was also contended by the learned counsel to the Appellant that the trial Court mentioned “Killed” (culpable homicide) while determining the offence of conspiracy, it is an oversight because both parties knows the offences for which the accused is standing trial which offences are armed robbery and conspiracy. The Appellant’s counsel challenged the appellant’s conviction and sentence on the basis that there was no identification parade.

The question at this juncture is: When does the issue of identification arise? Identification parade is only necessary in the following circumstances: 1. Where the victim/witness did not know the accused before and the first acquaintance with him is during the commission of the offence. 2. Where the victim (witness) was confronted by the defendant for a very short time; and 3. Where the victim (witness) due to time and circumstance might not have had the opportunity of observing the features of the accused. See IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455.

The issue of identification therefore would only arise where the identity of the person that committed an offence is unknown. In OCHIBA VS. STATE (2010) LPELR – 9002 (CA) P. 13, PARAS. A – B, his Lordship Rhodes-Vivour, JCA (as he then was) simply put the position of the law thus: … It is only when the identity of the accused person (appellant) is really in issue that an identification parade becomes necessary. ALABI VS. STATE 1993 7 NWLR PT. 307, P. 511, ORIMOLOYE VS. STATE 1984 10 SC P. 138, ANYANWU VS. STATE 1986 5 NWLR PT. 43 P. 612.” See also FATAI VS. STATE (2013) LPELR – 20182 (SC).

An identification parade is necessary where the arrest of the accused person is based on suspicion as opposed to where the accused person is apprehended on the spot, as happened in the present case. I am at one with the submission of the learned State Counsel, that the Appellant was one of the robbers arrested at the scene of crime that robbed the victims on the fateful day considering the evidence of the PW1 and PW2. The learned counsel to the Appellant did not controvert these pieces of evidence.

The Appellant voluntarily confessed to the crime, an identification parade was unnecessary in this case, the Appellant having been caught at the scene committing the offence. The Appellant was fixed at the scene of crime. In OLAOYE VS. STATE (2018) LPELR – 43601 (SC). In respect of the appellant’s confessional statement shelving the need for an identification parade the Apex Court held that: “…the appellant had identified himself when in his confessional statement Exhibit ‘H’, he had fixed himself at the scene of the crime on the day of the incidence.

The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.” See also IBRAHIM VS. STATE (1991) LPELR – 1404 (SC) PP. 11 – 12, PARAS. F – C. A careful look at the testimony of the PW3 he stated that: “… I work with the State CID Yola D8 section. Yes I now the defendant. On the 30th day of November, 2015, I was in my office when a case of criminal conspiracy and armed robbery was transferred from Lamurde Police Station to the State C. I. D. Yola for discreet investigation. I then records the statement of the one the victim one Samaila Yahya.

PW1 Sgt. Samaila Audu recorded that statement of the defendant herein in my present. Sgt. Samaila Audu has been transferred to Edo State Police Command as at 2016…” Under cross-examination, it was stated thus:- “I was around when the statement was taken and it was the IPO Sgt. Ismaila Audu that recorded the Defendant’s statement. The statement of the defendant was taken in English language. I am aware that the defendant does not understand English language. It is true that it is the IPO who records the statement…. Five of us were on the team.

Detective Usman Zubairu, Detective Ismaila Audu, the IPO, Detective Usman Sanda, Detective Abdul Abdulhamid and Detective Ahmed all also interviewed the defendant.” ​ From the above, it is pertinent to consider or rather observe the testimony of PW1 and PW2, the robbery took place at night at about 8:30pm to 8:40pm and the PW1 stated that there was no moonlight and under cross-examination that he only saw the accused for the first time.

The PW1 continued that the robbers collected their properties and immediately insisted they took them to the house of PW2 with all that they collected from the robbery and at the house, the PW2 stated that (the Appellant) and two others were arrested. It was also stated by the PW2 under cross-examination also that he did not recognize the accused at the scene. See pages 92 – 94 of the printed records of appeal. It is trite that where it has been severally held that weapon(s) used for robbery must not be tendered to secure the conviction of an accused because weapons can be easily discarded.

See SARIRU VS. THE STATE (2019) LPELR – 4686 (CA), JAMES SIMON VS. TH STATE (2017) LPELR -41988 (SC), AWOSIKA VS. THE STATE (2018) LPELR – 44351 (SC) PP. 42-43, PARAS D-G and in my judgment in OKOH VS. THE STATE (2008) LPELR – 8352 (CA). The minor discrepancies as made out by the learned counsel to the Appellant on the prosecution’s case are not material contradictions, which cannot affect the credibility of the prosecution witnesses. See EDUENOH VS. STATE (2019) LPELR – 48345 (CA) AND AKPA VS. STATE (2007) 2 NWLR (1019) 500 AT 528 PARAS D – G.

No doubt the offences of Criminal Conspiracy and Armed Robbery were proved against the Appellant beyond reasonable doubt. I cannot fault the judgment of the trial Court. In the final analysis, the appeal is dismissed for lacking in merit. The Judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in advance the draft copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with the decision of my learned brother in dismissing the appeal and affirming the judgment of the lower Court. I adopt the lead judgment as mine with nothing further to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Chidi Nwaoma Uwa, JCA. I entirely agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and it is accordingly dismissed. The judgment of the trial Court in Case No: ADSY/16C/18 delivered on 25/2/21 is affirmed.

Judgment

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment) : This is an appeal brought by the Appellant to challenge the correctness of the judgment of Hon. Justice L. M. Boufini of the High Court of Bayelsa State, Yenagoa Judicial Division in Suit No. YHC/167C/2016 delivered on 9th October, 2018, wherein the Appellant, Joshua Miracle, was found guilty of conspiracy to commit armed robbery and armed robbery, and consequently sentenced to death by hanging. The jurisdiction of this Court was invoked when the Appellant filed his Notice of Appeal on 5th November, 2018.

It contains five grounds with detailed particulars. The Appellant’s brief which was settled by O. A. Nelson, Esq. was dated and filed on 25th January, 2019, whereas, the Respondent’s brief was settled by its learned counsel, E.T. Boatman, Esq. and was filed on 22nd May, 2020. The Appellant’s Reply brief on the other hand, was filed on 30th June, 2020.

THE BRIEF FACTS OF THE APPEAL: ​The Appellant was charged before the lower Court by an Information filed on 26th September, 2016 on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and Section 1 (2) (a) of the Armed Robbery & Firearms (Special Provisions) Act, Cap R11, LFN, 2004. The Respondent as the Prosecution at trial called three witnesses and tendered EXHIBITS A, A1, and B also an ID which is a bond containing recharge cards released to the complainants by the police.

It was the summary of the Prosecution’s case at trial, that on the 11th July, 2016, the Appellant in company of two others now at large namely, Daniel and Tino, armed with a shotgun and a dagger knife, successfully robbed PW1 in front of his shop of a bag containing recharge cards of various denominations worth two million, one hundred naira only and physical cash of two hundred and twenty-three thousand naira only, and fled.

That upon boarding commercial tricycle (keke-napep) going to Opolo, they were intercepted at Otiotio junction, by men of the Operation Doo Akpor, who conducted a search on their persons and belongings found in their possession. In the process of the said search, Daniel and Tino fled the scene and the Appellant was detained. ​The next day, PW3 in company of the Appellant visited the scene of the robbery, and was properly identified by PW1 as one of the armed robbers who carried out the attack on him the previous day. A search warrant was executed and his private residence searched by PW3.

However, PW3 recorded the Appellant’s confessional statement under caution, wherein he admitted to the crimes. ​On the other hand, the Appellant’s case can be summarized thus: The Appellant is a welder apprentice, and that on 11th July, 2016, at about 7pm after he had closed from his place of work, he was going to his house in the company of his colleague named Daniel Rufus at Tombia, and a van containing some unknown people blocked his vehicle and whisked him away to Door Akpor, and then to SARS. While there, they were informed that there was a robbery.

During the investigation, the officers took him to his dad’s house to search the place, in search of what he did not know anything of. He did not make any statement at SARS, but was forced to sign an already written statement. At the proceedings during the trial, when the Respondent sought to tender EXHIBIT B, learned Counsel to the Appellant objected to its admissibility, stating that the Appellant was forced to sign EXHIBIT B, he was however overruled by the lower Court.

ISSUES FOR DETERMINATION: Learned Appellant’s Counsel in his brief of argument, formulated and canvassed two issues for determination to wit: i. Whether the trial Court was right to have relied on involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery? (Grounds 1, 2, and 3). ii.

Whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court? (Grounds 4 and 5). ​On the other hand, Counsel to Respondent formulated two issues for the determination of this appeal. i.

Whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made? ii. Whether the learned trial Judge was wrong in admitting the extra-judicial statement of the defendant without conducting a trial within trial?

SUBMISSIONS OF COUNSEL: On the first issue raised and argued by the Appellant’s counsel, he submitted that the learned trial Judge overlooked the evidence as shown before it and seemingly imported totally different evidence, as it were, into the proceedings. He submitted further, that there is nowhere in the entire proceedings of the Court that the Appellant admitted making and signing the alleged confessional statement, EXHIBIT B, without being coerced.

He noted instructively, that the learned trial Judge erred in omitting or ignoring the relevant averments of PW2 on this point at page 64 of the records of appeal. ​He vehemently submitted that the admission in evidence of the alleged confessional statement of the accused person as EXHIBIT B even when an objection to its admissibility on the ground that it was not voluntarily made by the Appellant was raised timeously by the Appellant’s Counsel, tantamount to affront to justice. In reliance of his proposition, he cited the decisions in OLAYINKA v.

STATE (2007) 9 NWLR (PART 1040) P. 561 AT Pp. 577 paras. C-E; paras. E-F; STATE v GWANGWAN (2015) ALL FWLR (PART 801) p. 1470 at pp. 1500-1501 paras D-H, paras A-B.

He submitted that by the unequivocal and combined intendment of the case laws and statutory provisions mentioned above is that the alleged confessional statements in EXHIBIT B is an inadmissible document and having been wrongly admitted was liable to be expunged from the record. ​It was contended that the learned trial Judge heavily relied on the alleged confessional statement of the Appellant to convict and sentence him for the offence of armed robbery and conspiracy to commit armed robbery even though the Appellant challenged the voluntariness of the alleged confessional statement, the learned trial Judge failed to conduct a trial within trial in order to test its veracity according to the law. ​He further submitted that the evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from its record.

He urged upon this Court to expunge EXHIBIT B the legally inadmissible alleged confessional statement of the Appellant and all the findings thereof made by the lower Court which were heavily relied on by the trial Judge to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery. He further urged this Court to resolve issue one in favour of the Appellant and overturn the decision of the lower Court, discharge and acquit the Appellant.

On the second issue, it is the submission of Appellant’s Counsel that even though the alleged confessional statement of the Appellant was properly admitted in evidence, that because an accused person’s extra-judicial statement is evidence of the fact that it was made but being an extra-judicial statement, it is not evidence of the truth of its contents. In reliance the Appellant’s learned counsel cited of STATE v.

OBOBOLO (2018) 4 NWLR (PT. 1615) P. 428, PARA G; 429, PARA A. ​He went further in his submissions to argue that the prosecution did not prove beyond reasonable doubt all the ingredients of the offence of armed robbery and conspiracy to commit armed robbery as contemplated by the law, yet the learned trial Judge convicted the Appellant by relying solely on the inadmissible admitted alleged confessional statement of the Appellant to convict and sentence the Appellant.

He submitted again, that the law does not impose an obligation on the Appellant to absolve himself of guilt, but rather it imposes an obligation on the prosecution to prove the guilt of the Appellant beyond reasonable doubt, and that to do this, the prosecution must prove the ingredients of the offence(s) charged as required by law and to the satisfaction of the Court. He reiterated the position of the law as enunciated by the Supreme Court in its decision in the case of EHIMEN ESENE v. STATE (2017) LPELR-41912 (SC).

The Appellant’s counsel further argued that the learned trial Judge, did not properly evaluate all the evidence canvassed by the prosecution witnesses before arriving at his decision to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery and argued that the prosecution has an obligation to place all available relevant evidence before the trial Court, and that where there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. He cited the decision in IBRAHIM v.

STATE (2015) ALL FWLR (PT. 779) P. 1149 AT pp. 1175 paras. D-E, G-H in support of his proposition. Learned Appellant’s Counsel again submitted in relation to the provision of Section 4 of the Police Act. Cap. P19 LFN 2004 that the in the absence of the report of police investigation report reduced the case to that of a civil nature where it is always the words of the parties against the other.

He argued that although the police investigation report is not binding, in a criminal trial, but it is of great value to the Court in the evaluation of the prosecution’s case before it arrives at a decision on the guilt or innocence of the accused person and also find that the without such evidence of police investigation report, it would be doubtful if such charge could be filed against the accused persons. He cited the case of ONONUJA v. STATE (supra) AT page 1226 paras E-H; 1227 paras A-E in support of his proposition.

It was further contended that the reliance on the uncorroborated ipse dixit of PW1, the inadmissible alleged confessional statement of the Appellant, failure to call PW1’s girlfriend and failure to call any of the police officers from operation Dooakpor, ought to have been applied to cast doubt on the guilt of the Appellant in the mind of the Court below. He again submitted that the fulcrum of the apex Court’s decision in the case of OLAYINKA v. STATE (supra) at p.575. Paras.

D-F, is that once the prosecution evince that the alleged weapons used in committing an alleged armed robbery is recovered, it behooves on the prosecution to tender same. He contended that the refusal of the prosecution to tender the alleged recovered weapons used by the Appellant in the alleged armed robbery as stated in the proof of evidence speaks volume, to wit, that there were no weapons recovered from the Appellant and that the alleged allegation was a trumped-up charge by PW1, being the only eye witness of the alleged armed robbery.

It was further argued that the evidence of the Appellant was never contradicted and/or rebutted by the prosecution during cross examination. He added that it is trite law that facts not disputed are taken as admitted and/or established, as they need no further proof. In further reliance on this statement of law, the Appellant’s learned counsel cited again the decisions in EHIMEN ESENE v. THE STATE (supra) Pp. 23-24 paras F-A Pp. 40-41; OLAKUNLE v. STATE (2018) 6 NWLR (PT. 1614) p.91 AT pp 110 para. B.

He finally submitted that from the foregoing, that in all ramifications, the prosecution has not proved any of the ingredients of armed robbery against the Appellant which must be proved beyond reasonable doubt in order to ground a conviction against the Appellant.

In their response to the arguments canvassed by the Appellant in his brief of argument, the Respondent argued the two issues already formulated in the Respondent’s Brief of argument. ​In arguing his first issue on whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made, Respondent learned Counsel submitted that it is the position of the law, that the moment the proof tendered by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the perpetrator of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by law.

In support of this proposition, he cited ADELEKE v STATE (2014) ALL FWLR (PT. 722) PG. 1655 AT PG. 1673, PARAS B-D. The Respondent’s learned counsel argued that the law has abundantly provided that in proving the guilt of an accused, the prosecution can do so by any these methods: (a) direct evidence (b) circumstantial evidence (c) confessional evidence and submitted that proof of at least one of these is sufficient to secure a conviction. He cited the decision in FRN v.

BARMINAS (2017) ALL FWLR (PART 882) PG. 1256 AT PG. 1277, PARA A-B and then contended that the trial Judge was right in convicting the Appellant for the offences upon which he was charged, seeing that neither of the prosecution witnesses nor exhibits A, A1, B or B1 was impeached during cross-examination and adding that the position of the law remains that unchallenged or uncontradicted evidence is the safest to rely on.

He further submitted that contrary to the arguments of Appellant’s Counsel, he argued that the Court did not rely solely on EXHIBIT B to ground the conviction, but rather, on the combined evidence of the prosecution witnesses is corroborative enough to convict the Appellant. In reliance of this proposition, the Respondent’s counsel cited the cases of YAHAYA v. STATE (2016) LPELR-40254 (CA) (P49, PARAS A-C).

The Respondent’s Counsel urged this Court to discountenance the arguments of Appellant’s Counsel in paragraphs 5.7-5.13 on the ground that they are not issues emanating from the judgment of the trial Court being complained against. He added that an appeal is not a ground for rearguing the case of the Appellant, rather what an Appellant’s Counsel can do is to provide authorities to convince the appellate Court that the trial Court erred in law to have arrived at the decision appealed against. In reliance, he cited the decision in OREDOYIN v.

AROWOLO (1989) 4 NWLR (PT. 114) 172; TARHEME ABE & ANOR v. GABRIEL DAMAWA & ANOR (2011) LPELR-5007 (CA). He further submitted, that the trial Court was right to have convicted the Appellant for the offence of conspiracy, as from the evidence available to the lower Court there was clearly the ingredients of conspiracy therein.

On the second issue, he submitted that by virtue of the implication of Section 29(1) and (2) of the Evidence Act, 2011, where an objection is raised as touching the voluntariness or otherwise of a confessional statement, the law requires the Court to conduct a trial within trial in order to test the voluntariness or otherwise of the extra judicial statement.

He however contended, that the law did not foreclose the trial Court from inquiring from taking a look at the statement to see whether there is need for trial within trial or not. ​He further submitted that an objection as to the admissibility of a confessional statement is not an outright condition for trial within trial, as a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled. He cited the decision in DARE JIMOH v. STATE (2014) LPELR-22464 (SC).

He submitted that the trial Judge was right in admitting the extra-judicial statement of the Appellant as exhibit, this he reasoned also because as he observed, the Appellant when inquired by the learned trial Judge admitted making the statement. He further argued that it was the duty of the Appellant and not his Counsel to raise the issue of involuntariness of a confessional statement and in support of this proposition, the Respondent’s counsel relied on FRN v. BABALOLA (2015) ALL FWLR (PART 785) 227 AT 247, PARAS. D-E.

In his conclusion, he urged this Court to discountenance the submissions of the Appellant, dismiss the appeal and to uphold the verdict and the sentence imposed by the lower Court.

The Appellant’s Counsel in his Appellant’s Reply brief, made some rebuttals to the Respondent’s brief and submitted that the burden of proof in a criminal trial remains on the prosecution throughout and does not shift, as the burden is only discharged by leading cogent and credible evidence to establish all the essential elements of the charge against the defendant. ​In support of statement of law, he cited the decisions in the cases of JATO v. STATE (2019) 8 NWLR (1674) 317 at Pp. 325-326, paras. F-A; EHIMEN ESENE v STATE (2017) LPELR- 41912 (SC).

He submitted further, that the prosecution at the trial hearing, did not prove the offence of armed robbery against the Appellant beyond reasonable doubt, as the only evidence that tends to link the Appellant to the alleged offense is the uncorroborated ipse dixit of PW1. On why the Appellant failed to cross-examine PW2 at trial, he submitted further that the evidence of PW2 was a mere hearsay and thus was inadmissible in law and cannot be used as corroboration to the ipse dixit of PW1.

He argued, that the statement of PW2 as contended by the prosecution, cannot be corroborative evidence because it is not a fresh and independent statement, rather it is a repeat of what he was told by PW1. In reliance he cited the decisions in ITODO v. STATE (2020) 1 NWLR (PART 1704) 1 AT Pp. 29-30 paras. H-G; P.40, paras A-H and STATE v.

YAHAYA (2019) 13 NWLR (PART 1690) P. 397 AT p. 428-429 paras H-B. ​He further argued that even though the Appellant’s Counsel dutifully objected to the admissibility of the alleged confessional statement on the ground that it was not voluntarily made, the trial Judge overruled this objection on the pretext that the trial Judge inquired from the Appellant on the same issue, and he received an answer in the affirmative.

He contended that the personal knowledge of a Judge cannot take the place of evidence in matters placed before him, and that it does not lie with a trial Court to help out the prosecution to buttress its case against an accused person. In support of this proposition, he cited the decision in OBI v. ATTORNEY GENERAL, IMO STATE (2016) 3 NWLR (PART 1500) P.11 paras E; F-G. He equally countered Respondent’s Counsel’s contention that it was Appellant’s Counsel and not the Appellant that objected to the admissibility of the alleged confessional statement, by citing the case of EKWURUEKWU v.

STATE (2020) 4 NWLR (PART 1713) P. 114 AT P. 134 paras D-F, wherein the Supreme Court opined that it is the duty of the learned Counsel to raise an objection to confessional statement that was being tendered on the ground that the statement was not voluntary and that trial within trial would then become necessary in order to determine voluntariness or otherwise of the making of the statement.

In sum, he urged upon this Court, to accede to the reliefs sought by the Appellant in allowing this appeal, and overturning the conviction and sentencing of the Appellant and discharge and acquit the Appellant. RESOLUTION OF ISSUES: Having taken quality time to study the two issues respectively formulated and canvassed by both parties in their respective briefs of argument, and having seen that they are substantially the same, I will therefore advisedly adopt the two issues raised by the Appellant for the due and just determination of this appeal.

The first issue can be gleaned, perhaps extrapolated from the first three grounds of appeal, and bothers on whether the trial Court was right to have relied on the involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery. ​It is trite law that where an objection is raised in a criminal proceeding against the admissibility of an alleged confessional statement, the trial Judge ought to immediately conduct a trial within trial, in order to properly determine the voluntariness or otherwise of the making of the confessional statement.

See the provision of SECTION 29(1)–(3) of the EVIDENCE ACT, 2011. ​In the instant case, the Appellant’s Counsel having objected to the admissibility of the EXHIBIT B, the alleged confessional statement made by the Appellant in the course of investigation, but was summarily overruled by the trial Judge, and same was admitted as an exhibit. The trial Judge in page 51 of the records gave his reasons for the admittance of EXHIBIT B, the alleged confessional statement, despite the objection of the Appellant’s Counsel.

In his own words, he stated thus: “…On the 2/2/2017 when PWs sought to tender the extra judicial statement of the accused person, the defense Counsel raised an objection on the grounds that the statement was not voluntarily made, the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.” In explaining the rationale for his decision, the learned trial Judge recorded why he admitted EXHIBIT B, the learned Counsel to the Respondent, referred this Court to the case of DARE JIMOH v.

STATE (2014) LPELR-22464 (SC), wherein the apex Court opined accordingly: “a trial is said to be necessary when the voluntariness of the making of the confessional statement by an accused person is in issue or raised by an accused person is in issue or raised by an accused person. In other words, where the accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary.

However, when the trial Court is satisfied that the statement was voluntarily made, the Court is entitled to admit it as an exhibit in evidence before the Court,” ​Learned Counsel to the Respondent contended further that by virtue of the word “HOWEVER” in the above dictum, it is an indication that an objection for the admissibility of a statement is not an outright condition for trial within trial, for a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled.

This submission of learned Counsel to the Respondent has in my view, pushed forward one question to answer and it is “why did the trial Judge overrule the objection of the Appellant’s Counsel?” Graciously, the answer to this germane question has already been answered above, when the trial Judge said “…the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.” ​This reason given by the learned trial Judge, further led this Court to dig into the records as it’s the only guide for the events that transpired in the proceedings in the trial Court.

By the record of proceedings, particularly at page 51, there is no where contained therein where the trial Judge made any inquiry to the Appellant and he answered the trial Judge in the affirmative. From the records before us, such an interaction was not borne out of the record of the proceedings in relation to Exhibit B that was used and relied upon by the trial Judge. No place in the entire length and breadth of the records does that particular interaction or conversation featured between the Court and the Appellant whilst standing trial.

How the learned trial Judge came about such a “finding” of fact still remains an unresolved puzzle. It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the record of appeal as compiled and transmitted to it and therefore, cannot go outside the contents of the record of appeal to decide on issues in contention in the appeal between the parties before it. See the decisions in GLOBAL FLEET OIL & GAS LTD v. ALLEN (2021) LPELR-54583(CA); AGBEOTU v. BRISIBE (2005) 10 NWLR (Pt. 932).

This Court is indeed bound by the records of appeal, as it was not physically present during the trial at lower Court, and thus can at best only rely on the records as compiled and transmitted to it. This Court cannot go outside the records to import facts, or alleged interactions between the learned trial Judge and the Appellant, when they do not exist in the record.

It will also be wrong for this Court to rely on statements made by the trial Judge that happens to be within the confines of his personal knowledge alone, and which he seeks by some cloistered method to add to the body of evidence before him. See the case of OBI v. ATTORNEY GENERAL, IMO STATE (2016) (supra). My noble Lords, given the circumstances of the obvious and wrongful omission by the learned trial Judge to conduct a trial within trial when same is required by law, the apex Court has most recently made a pronouncement in its decision in the case of STATE v.

SADIQ(2021) LPELR-56660(SC), thus: “… His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement. Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case.

The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.” Following this judicial statement, this Court also most recently held in the case of MOHAMMED v. KANO STATE (2021) LPELR-54801(CA) that: “Failure to conduct the trial-within-trial, when necessary, renders the statement inadmissible, and if wrongfully admitted, should be expunged from the record or discontented. It should be un-relied upon. See also EHOT v. STATE (1993) 4 NWLR (PT 290) 644 AT 673 C, OGU v.

C.O.P (2018) 8 NWLR (pt 1620) 134”. ​It should naturally follow that only lawful and proper order for this Court to give after resolving this issue against the Respondent in favour of the Appellant, will be to expunge completely from the records, EXHIBIT B as a product of unlawful extraction of a confessional statement from the Appellant contrary to the provision of the Evidence Act, supra and the Constitution as a fundamental right from self incrimination pursuant to Section 36(11) of the Constitution, 1999 As Amended, and the alleged confessional statement was in utter violation of the Appellant’s right to fair trial as the trial Judge erred in law by refusing to test the veracity of the voluntariness of the contents of exhibit B without conducting a trial within trial and acted in my view, without jurisdiction to assume that the statement was made voluntarily as the trial within trial was meant to unearth the factual circumstances under which the confession was allegedly made by the Appellant.

I so hold. The second issue raised by the Appellant flows from the fourth and the fifth grounds of appeal, and it bothers on whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court?

As EXHIBIT B, the alleged confessional statement of the Appellant has been expunged from the records, it will be curious to see if the other pieces of evidence placed before the learned trial Judge were enough to ground a conviction of conspiracy and armed robbery against the Appellant. The law is clear and well established on the ingredients that must be proved to be able to sustain a conviction of armed robbery, they are as follows: a) That there was a robbery b) That the robbery was carried out with the use of offensive weapons c) That the accused person participated in the robbery.

It is imperative to say that all the above requirements must be consecutively proved beyond reasonable doubt before a conviction can be sustained based on the indictments in the Information filed. See the decision in the case of EHIMEN ESE v. STATE (2017). ​From the evidence given by PW1 who happened to be the only eye witness fielded by the prosecution, he brought the following facts: i. The PW1 was not alone at the time of the robbery, but rather was in the presence of his girlfriend. ii.

The Appellant was the member of the gang of 3 robbers that pointed a gun at him, the other robbers wielding knives. iii. That the Appellant has been a frequent visitor of the recharge card shop, where he used to come and see one Tega Moses who was PW1 sales girl and allegedly the Appellant’s girlfriend. iv. That PW1 and the Appellant have been previously well acquainted before the day of the robbery. v.

That the PW1 only knew that the Appellant was among the alleged armed robbers in the morning when the accused person was brought by the police; despite PW1 allegedly flashing him torch light during the alleged robbery. vi.

Finally that the said Tega Moses made a statement to the police and that the said statement was in the case file and that he also prepared a police investigation report which was also in the case file. ​It is trite in law, that the prosecution has a solemn obligation as a minister in the temple of justice to the trial Court to place all available relevant evidence and witnesses before the trial Court in order to aid in the resolution of any vital point that such a witness or evidence may help resolve or settle.

In sum, the prosecution must not withhold vital evidence or witnesses whose testimonies may lead the Court to a just determination of the vital issues in contention. See the case of IBRAHIM v. STATE (2015) ALL FWLR (PT. 779) P. 1149 at PP. 1175 paras D-E, G-H. It is disturbing to think that the prosecution conveniently omitted to call Tega Moses who was supposed to be a key witness, neither did they deem it fit to tender her extra judicial statement made to the police before this Court, more over seeing that she was allegedly the informant of the Appellant.

It is equally disturbing that the prosecution failed to call the second eye witness, one Mercy, the girlfriend of PW1 who according to the evidence of PW1, was present at the time of the alleged robbery. Neither did the prosecution deem it fit to tender in evidence, the police investigation report in accordance with SECTION 4 of the POLICE ACT. CAP. P19 LFN 2004. ​It is only natural and logical for this Court to presume that any evidence which could have been tendered but was not produced for whatever reason, would if produced, be unfavourable to the person who withholds it.

See SECTION 167 of the EVIDENCE ACT, 2011, and the decision in ONONUJA v STATE (supra). The suppression of the aforementioned pieces of evidence is bound to naturally cast doubts on the mind of this Court on the guilt of the Appellant. I see no reason why Mercy, the girlfriend of PW1 a fellow eye witness, whose account could have helped facilitate the determination of the Appellant’s guilt will be left out, neither do I understand the suspicious suppression of vital and relevant evidence by the prosecution in this case.

This Court is now weary of accepting hook, line and sinker, the scanty and largely unconvincing evidence produced by the prosecution in criminal matters such as in the instant case and beside this, is the fact that no evidence has irrefutably confirmed the existence of the three ingredients of armed robbery all linked to the Appellant.

As simply as it would have been to tender the recovered weapons used in the alleged armed robbery, the prosecution also failed to do this. ​With these overwhelming lapses on the part of the Respondent, one can only imagine and surmise from two opposite spectrums, the one being that the prosecution was grossly negligent in the prosecution of this case, or the other being that indeed the evidence not produced were deliberately suppressed because they either did not exist or they would have led to proving the innocence of the Appellant.

Furthermore, it is abundantly evident, that the prosecution relied very heavily on EXHIBIT B, the alleged confessional statement of the Appellant, which has now been expunged from the records. It is clear to see that without EXHIBIT B, the alleged confessional statement of the Appellant, the case of the prosecution against the Appellant is shallow and weak and is grossly insufficient to ground a conviction. As we know, in serious offences carrying the death penalty, a high degree of proof is necessary to secure conviction.

The law is also trite that in a criminal trial, if the totality of the evidence causes the Judge to entertain any scintilla of doubt, then the benefit of such doubt must be resolved in favour of the accused person by virtue of the constitutional presumption of innocence vide Section 36 (5) of the Constitution, 1999 as amended. It will be fatal to the course of justice for this Court to fall into the same error as the lower Court as I am compelled to resolve issue two in favour of the Appellant.

Having dispassionately, perhaps painstakingly dealt with the issues formulated and canvassed above, it is clear that the Respondents have failed to prove the guilt of the Appellant beyond reasonable doubt, as a consequence of the overwhelming lapses and loopholes in their case against the Appellant. ​In addition, the deliberate suppression of evidence by the prosecution, the failure of the trial Judge to conduct a trial-within-trial following the objection raised by Appellant’s Counsel to the admissibility of the alleged confessional statement, and the failure of the prosecution to prove to this Court that the ingredients of armed robbery are present in this case, makes it judicially risky for this Court to uphold the conviction of and sentence imposed by the lower Court.

The prosecution has failed to successfully discharge the burden of proof that is legally placed on it in criminal trials, as it’s elementary and almost axiomatic by our adversarial mode of jurisprudence that he who asserts must prove and in a criminal trial, beyond reasonable doubt as is the case in criminal trials. There was yet a reasonable doubt in the mind of this Court. I hereby overturn the conviction and sentencing of the Appellant by the lower Court and discharge and acquit the Appellant.

Consequently, the Appellant having been discharged and acquitted, shall be released forthwith in the place he has been held by reason of the judgment of the lower Court, High Court of Bayelsa State sitting in Yenagoa delivered by Hon. Justice L.M. Boufini on 9th October, 2018 which is hereby set aside. The appeal succeeds.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: My very brother, Gabriel Omoniyi Kolawole, J.C.A., graciously allowed me to read in the draft, the judgment just delivered by him. I agree with his reasoning, conclusion and Orders made therein. I wish to add that the law is sewed that in a criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt, and a general burden to rebut the presumption of innocence constitutionally guaranteed to the citizen.

The burden on the prosecution is only discharged when the essential ingredients of offence charged have been established and accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. Attorney-General of Bendel State (1986) 2 NWLR (Pt. 24) 648.

The verdict of guilt on a suspect can only be sustained upon evidence which establishes beyond reasonable doubt the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Fore (2000) 15 NWLR (Pt 692) 868 at 880-881. In this appeal, the lower Court admitted the extra-judicial statement of the Appellant in evidence, as exhibit B, despite protestations to its voluntariness and admissibility, by Appellant’s counsel, at the trial.

It was imperative that a trial-within-trial should have been conducted before the document was admitted in evidence. We have to be reminded that a trial Court has the duty to consider all defence possible or available to an accused person or an Appellant in a criminal case, even though such defences may appear stupid, improbable or ungrounded.

The defences which the Court has the duty to consider on behalf of the accused person or an Appellant are defences that appear or are contained in the evidence in the record of proceedings of the Court even if the accused person did not specifically raise them. See Annabi v. State (2008) 13 NWLR (Pt. 1103) 179 at 200. Having wrongfully admitted and acted on the extra-judicial statement, the action of the lower Court cannot be allowed to stand. Evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record.

Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. Furthermore, an appellate Court faced with such situation has a duty to intervene. See Agbaje V. Adigun (1993) 1 NWLR (Pt. 269) 261. Furthermore, when a finding of fact is based on inadmissible evidence (Oral or documentary) the finding is perverse and an appellate Court has a duty to interfere with the finding of fact and set it aside. See State v.

Emine (1992) 7 NWLR (Pt. 256) 658 and Asanya v. State (1991) 3 NWLR (Pt. 180) 422.

​The name of a vital witness also came up at the trial. The prosecutor failed to call or account for that witness or person. The fact that the prosecution failed to call a vital eyewitness should have been followed by the lawful consequence of such abstinence. In the case of Oduah v. FRN (2020) 12 NWLR (Pt. 1737) 16 at 32-33, the Court put out education about what should follow, where a vital witness is not called at a criminal trial, by the prosecution.

While it is true that the prosecution is not obliged to call all listed witnesses or to call a host of witnesses to get a conviction, where, however, there is a vital witness whose evidence is very crucial and important to the case of the prosecution in the proof of the guilt of the accused person, such a witness must be called; and failure to so call him would be fatal to the proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced, it would work against the prosecution and favour the accused person.

Where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that witness been called, his evidence would have been unfavourable to party who called him. See Onah v. State (1985) 3 NWLR (Pt. 12) 236. In sum, I agree that the appeal has merit. This appeal is allowed. The judgment of the High Court of Bayelsa State, under the hand of Justice L. M. Boufini, dated 01/10/2018, is hereby set aside. The conviction and sentence of the Appellant is hereby set aside.

The Appellant is discharged and acquitted. The Appellant shall be released from his current place of detention, immediately.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the privilege of reading in its draft form, the lead judgment just delivered by my learned brother, Gabriel O. Kolawole JCA where he allow the instant appeal for being meritorious and set aside the decision of the lower Court. I agree with him and have nothing to add. The Appellant is discharged and acquitted.

Judgment

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of the Katsina State High Court, sitting at Funtua, delivered on the 27th day of February, 2017 by Hon. Justice Ibrahim M. Bako (of blessed memory) whereby the Appellant was convicted and sentenced to 2 weeks imprisonment for the offence of causing grievous hurt, punishable under Section 247 of the Penal Code Law of Katsina State as a lesser offence to the charge of Armed Robbery contrary to Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11 LFN 2004.

The Appellant was charged alongside one Amadu Abubakar (the 2nd accused) on a one count charge of armed robbery. The Appellant pleaded not guilty to the charge. At the hearing of the case before the trial Court, five witnesses testified for the Respondent (Prosecution). The Appellant testified for himself and called one other witness. ​The learned trial judge examined the testimony of the witnesses vis-à-vis, the ingredients of the offence of armed robbery as charged.

He was not convinced that the Respondent (Prosecution) made out a case against the Appellant and co-accused for the offence of armed robbery. He thereupon convicted the Appellant and his co-accused for the offence of causing grievous hurt punishable by Section 247 of the Penal Code Law, Cap. 96 Laws of Katsina State, 1991.

The reasoning and conclusion of the learned trial judge could be found on pages 59 – 60 of the Record of Appeal thus: “By and large, while I am not convinced that the charge of armed robbery against the accused persons punishable under Section 1(2)(a) and (b) of the Robbery and Fire-arms (Special Provisions) Act, Chapter R. 11 LFN 2004 is not sustainable in view of the absence of the essential elements of the said offence, which I have identified in the preceding paragraphs, it is my view that the accused persons’ treatment of the witness (i.e.

PW 1) whereby they caused him to lose control of his motorcycle and have an accident thereby injuring his face and right hand is wrongful. From the description given by PW2 of the nature of injuries sustained by PW1, it is clear that it is a type that endangers life just like any injury in the face or somewhere on the head. It is the type of hurt envisaged by Section 240(g) of the Penal Code as being among the types of hurt designated as grievous hurt.

Accordingly, and following the footsteps of the Supreme Court in the application of Section 218(1) of the Criminal Procedure Code in its decision in the case of: Ezeja v. State (2008) 10 NWLR (Pt. 1096) P. 513 at P. 526 paras A – E. I can quite conveniently discharge the accused persons of the offence of Armed Robbery as aforesaid/charged, but convict them for the lesser offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code.

Accordingly, I hereby find you guilty and convict you of the offence of causing grievous hurt punishable under Section 247 of the Penal Code.” Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal containing three grounds of appeal in this Court on 29-01-2021. The relevant briefs of argument for the appeal are as follows: 1. Appellant’s brief of argument which was filed on 2-7-2021 but was deemed filed on 12-10-2021. It is settled by A. M. IMAM Esq. 2. Respondent’s brief of argument which was filed on 20-10-2021. It is settled by B. F. Abdullahi Esq. Asst.

Director Ministry of Justice, Katsina State. 3. Appellant’s reply brief of argument which was filed on 30-12-2021. It is settled by A. M. Imam Esq. Learned Counsel for the Appellant nominated three (3) issues for the determination of the appeal. They are: “1. Whether the learned trial judge was right when he convicted and sentenced the Appellant for the offence under Section 247 of the Penal Code which he was never charged. 2.

Whether the learned trial judge was right when he discharged the Appellant of the offence he was charged and convicted him of an offence for which he was neither charged nor pleaded to. 3.

Whether the learned trial judge was right when he admitted Exhibits A and A1 made by 2nd accused but credited it to the Appellant and heavily relied upon same in his judgment.” Learned counsel for the Respondent adopted the three issues nominated by the Appellant in determination of the appeal. ​ In arguing his issues 1 and 2 together, learned counsel for the Appellant conceded that it is trite principle of law that a trial Court has the power and discretion to find a defendant guilty of a lesser offence when the principal offence has not been satisfactorily proved as it was in the case of Ezeja v.

The State (2008) 10 NWLR (Pt. 1096) 513 at 526. However, that in the instant case, the Appellant was charged under Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act Cap. R 11 LFN 2004, which is a separate and distinct law from the Penal Code Law, that the learned trial judge thus erroneously exercised his discretion of sentencing the Appellant for a lesser offence under different law.

He submitted that the provision of Section 240(g) (sic) 247 of the Penal Code relied upon by the learned trial judge in convicting and sentencing the Appellant with its particulars are totally at variance with the particulars required to be proved in the offence of armed robbery being the substantive offence the Appellant and his co-defendant took their respective pleas and charged therefor.

Learned counsel for the Appellant enumerated the ingredients of the offence of armed robbery as- a) that there was a robbery b) that the accused person(s) was one of those who took part in the robbery. c) that the robbery was an armed robbery i.e. the accused person or any other participant was armed at the material time.

In contrast, counsel submitted that the particulars under Section 240(g) (sic) 241(g) and 247 of the Penal Code envisage that the hurt suffered by the victim must be of such which endangers life, or which causes the victim to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits. He submitted that by his plea, the Appellant only had notice and prepared his defence for the offence of armed robbery but did not have notice and could have been taken by surprise by a conviction under Section 247 of the Penal Code Law.

Learned counsel for the Appellant submitted further that these two separate offences emanate from different legislations i.e. Federal and State Laws with distinct particulars and cannot therefore be presumed to be capable of being subsumed into particulars of offence in relation to securing a conviction for a lesser offence, as erroneously conceived by the trial Court.

He submitted that the learned trial judge’s purported exercise of discretion pursuant to Section 218(1) of Criminal Procedure Code by convicting for a lesser offence of grievous hurt under Section 247 of the Penal Code was in breach of the Appellant’s constitutional right to fair hearing under Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria (1999) as amended.

He reproduced the provision of Section 218(1) of the Criminal Procedure Code thus: “When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.” Appellant’s counsel submitted that the lesser offence for which the Appellant was convicted was not satisfactorily proved.

That the learned trial judge fell into an error when, without any attempt to examine the ingredients of the offence created by Section 247 of the Penal Code, held that the offence had been proved. ​ He submitted that the entire gamut of the testimonies of the Respondent prosecution witnesses are full of speculations and contradictions which ought to be resolved in favour of the Appellant. Learned counsel for the Appellant faulted the reliance of the trial Court on the case of Ezeja v.

State (2008) 10 NWLR (Pt. 1098) 513 at 526 in reaching its conclusion on convicting the Appellant of the lesser offence under Section 247 of the Penal Code. He reasoned that both the offence charged and the lesser offence convicted upon in the Ezeja case are contained in the same enactment, this is the Penal Code Law (applicable in Benue State) that in contrast, the offence charged in the instant case is under a Federal Legislation, that is Robbery and Firearms (Special Provision) Act Cap. R. 11 LFN 2004 which is separate and distinct from the offence under Section 247 of the Penal Code Law.

He referred to the case of Attah v. State (2010) ALL FWLR (Pt. 540) 1224 at 1244 and emphasised that the provision of Section 218(1) of the CPC is expressed as to a single offence, carrying out a single or set of particulars and from a single law/enactment. Appellant’s counsel concluded his issues 1 and 2 by saying that the concept of convicting for a lesser offence was wrongly applied by the trial Court and not applicable to the instant case.

He submitted that the Appellant was misled by the abrupt introduction of the lesser offence principle when in fact he (the Appellant) could have properly conducted his defence against the offence of intentionally causing hurt, and thereby occasioned a miscarriage of justice. He urged us to resolve issues 1 and 2 in favour of the Appellant. On the said issues 1 and 2, learned counsel for the Respondent also reproduced the provision of Sections 218(1) and (2) of the Criminal Procedure Code and referred to the cases of Idoko v. State (2018) 6 NWLR (Pt. 1614) 117 at 137, John Etim v.

The State (2019) 10 NWLR (Pt. 1681) 401 to restate the principle embodied in the provision of Section 218 of the Criminal Procedure Code that- “An accused person may be convicted of lesser offence as disclosed by the evidence where the evidence is held to be insufficient to justify a conviction for the principal offence.” Learned counsel for the Respondent submitted that it was held by the Supreme Court in the case of John Etim v.

The State (supra) that the provision of Section  179 of the Criminal Procedure Act which is in pari materia with Section 218(1) of the Criminal Procedure Code Law of Katsina State, 1991, could be invoked to convict the Appellant of an offence lesser than the one with which he was charged and it does not amount to breach of fair hearing if the Appellant was not afforded the opportunity to address it.

In the instant appeal, counsel added, the Appellant was asked by the trial Court whether he understood his conviction and he answered in the affirmative and went ahead to make allocutus through his counsel. He submitted that Section 218(1) and (2) did not make it a condition precedent that for the trial Court to exercise his discretion under the Section the principal offence and the lesser offence must be of the same statute.

The only guiding principle is whether the evidence adduced by the prosecution and the facts found are insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted. ​ He submitted that the testimonies of PW1 and PW2, who were eyewitnesses to the incident provided facts that supported the conviction of the Appellant as founded by the trial judge. And, that there were no contradictions in the evidence of the Respondent’s witnesses. He urged us to resolve issues 1 and 2 in favour of the Respondent.

In his reply brief of argument, learned counsel for the Appellant in anchoring the issue on whether a person charged with a federal offence can be convicted for a State offense he was charged with, referred to the decision of the Court of Appeal in the case of Yakubu Musa v. The State (2021) 12 NWLR (Pt. 1790) 280 – 282 where the question whether a person charged for a federal offence like armed robbery can be convicted for a state offence like dishonestly receiving stolen property was answered in the negative by the Court of Appeal per Ugo J.C.A.

He submitted that the Robbery and Firearms (Special Provisions) Act did not make any provision for a defendant for lesser offence where the main offence cannot be proved. He referred to the cases of Okobi v. State (1984) LPELR – 2453 (SC) (1984) 7 S.C. 47, Mohammed Bello v. State (2020) 3 NWLR (Pt. 1710) 72 and submitted that “… the Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act.

There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action. It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction.” He urged us to allow the appeal. Resolution of issues 1 and 2 I must start by saying that the provision of Section 218(1) and (2) of the Criminal Procedure Code itself is not at large. Its application is circumscribed by conditions to be fulfilled within the statute.

It reads: Section 218(1) “When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.”

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.” By the above provision, the particulars, fact and circumstances of the original offence charged are the same or similar to the lesser offence. In other words, the lesser offence is a combination of some of the several particulars making up one offence charged, the particulars constituting the lesser offence are carved out of the particulars of the offence charged. See e.g. Okwuwa v. The State (1964) 1 ALL NLR 366.

In Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765, 1986 1 SC 477, (1986) LPELR – 2085 (SC) Karibi-Whyte JSC threw further light on the application of Section 179 of the CPL (in pari materia with Section 218 of the CPC. His Lordship first cited the decision in Tor hamba v.

Police (1956) N.R.N.L.R. at P. 94 (where) the Court had attempted to give a guide as to the determination of what constitutes a lesser offence (thus): “a lesser offence is a combination of some of the several particulars making up the offence charged, in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged … when one is considering action under Section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of these particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict.

An authoritative example is furnished by the case of Zooray v. The Queen (1953) 2 WLR 965; (1953) AC 407. His Lordship, Karibi-Whyte JSC proceeded thus in the case of Nwachukwu v. The State (supra) “It must be kept constantly in mind that Section 179 in issue in this appeal is concerned (with) where the lesser (offence) charged in respect of which accused is convicted arises from the facts and evidence led in support of the more serious in respect of which . . . . the accused is charged.

The operative words are “lesser and not ‘another’ offence” Thus, where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption which is legitimate, is that accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence.

It is therefore important to observe from the judicial decisions and the provisions that, for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed: Firstly, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences. Secondly, the evidence led and facts found, though insufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence.

Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater included by necessary implication the lesser.” In other words, for the invocation of the provision of Section 218 of the Criminal Procedure Law, the lesser offence must not only be a kindred offence with the actual offence charged, its ingredients must be embedded in the actual charge. See Ezeja v. The State (2008) ALL FWLR (Pt. 428) 256/258 – 269, (2008) 10 NWLR (Pt. 1096) 513. In Agugua v.

The State (2017) LPELR – 4202 (SC) 54 – 55; (2017) 10 NWLR (Pt. 1573) 254, the Supreme Court relying on its earlier decision in The Nigeria Air Force v.

Kamaldeen (2007) 2 SC 113; 154-55, (2007) 7 NWLR (Pt. 1032) 164 restated the position that: “The law is that before an accused can be convicted for a lesser offence/the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged.” In the instant case, grievous hurt or causing grievous hurt may possibly be a factual consequence of the offence of armed robbery – causing grievous hurt is however not a lesser offence of the offence of armed robbery.

The legal requirements, ingredients for the offence of causing grievous hurt cannot be subsumed in the ingredients of the offence of armed robbery. ​ The term “Hurt” is defined under Section 240 of the Penal Code – thus: “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” However, it is trite that 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 the arm or arms, participated in the robbery.

Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person 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. See Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561 SC, Okosi v. A-G, Bendel State (1989) 1 NWLR (Pt. 100) 642 SC and Martins v. State (1997) 1 NWLR (Pt. 481) 355 CA.

It seems to me also, that the case of the Respondent in this appeal is further weakened by the decision of the Supreme Court in the case of Okobi v. The State (1984) 7 SC 47, 1984 LPELR – 2453 (SC). One of the questions that arose for determination in Okobi v. State (supra) was whether a failure to secure a conviction under the Robbery and Firearms (Special Provisions) Act entitled a High Court to proceed to convict, of a lesser offence under the Criminal Code by virtue of Section 179 of the Criminal Procedure Law (in pari materia with Section 218 of the Criminal Procedure Code).

In that case, Obaseki JSC at page 23, made the following pronouncements: “I am of the settled view that this Court has no jurisdiction to entertain any application to convict the appellant of a lesser offence under the Criminal Code at the hearing of an appeal against a conviction for an offence under the provisions of the Robbery and Firearms (Special Provisions) Act. There being no provision under the Robbery and Firearms (Special Provisions) Act permitting such a course of action.

It will amount to a denial of justice to the appellant to convict him of an offence under a law different from that under which he was tried for the sole purpose of securing his conviction. . . . .” Undoubtedly, it was the above reasoning that led the Supreme Court again in the case of Mohammed Bello v.

The State (2020) 3 NWLR (Pt. 1710) 72 at 93 to hold per Eko JSC, that: “I cannot see from the counts alleging criminal conspiracy to commit armed robbery and armed robbery contrary to Robbery and Firearms (Special Provisions) Act that the appellant (1st accused) herein was sufficiently put on notice of the elements constituting the offence under Section 319 A of the Penal Code Law of Kwara State. I do not think, and I so hold that the conviction for the State offence, in substitution for the Federal offence that the Prosecution failed to prove is proper.

The appellant could not in the circumstance, be deemed to have notice of the particulars of the State offence under Section 319 A of the Penal Code or that the particulars of this State offence were carved out of the Federal offence not proved.

In the circumstance, I allow the appeal…” Similarly, one can conclude in respect of the instant appeal, that the High Court of Katsina State lacks the necessary vires, jurisdiction to convict and sentence the Appellant charged under the Robbery and Firearms (Special Provisions) Act for the lesser offence of causing grievous hurt under Section 247 of the Penal Code Law of Katsina State which is a State law with separate and distinct particulars with the Federal law under which the Appellant was charged. For these reasons, Appellants issues 1 and 2 are resolved in favour of the Appellant.

Having resolved the said issues 1 and 2 in favour of the Appellant, this appeal is meritorious and it is accordingly allowed. The judgment, conviction and sentence of the Appellant for the offence of intentionally causing grievous hurt without provocation punishable under Section 247 of the Penal Code in Suit No. KTH/FT/12c/2012 are hereby set aside. In their stead, I enter an order discharging and acquitting the Appellant for the said offence.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother, M. A. Owoade, PJCA.

My brother in the lead judgment has dexterously waded through provisions of Section 1 (2) (6) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation of Nigeria 2004 vis-a-vis Section 247 of the Penal Code Law of Katsina State and several judicial authorities to resolve the main issue to wit; whether in view of the failure by the prosecution to prove the ingredient of the offence provided in the former federal statute, the lower Court was right when it suo motu resorted to the latter state legislation to convict the appellant of a lesser offence.

I agree with and adopt as mine the decision reached by my brother in the lead judgment, supported by plethora of judicial authorities cited and relied upon, that the lower Court has reached a decision that is ultra vires by convicting the appellant of a lesser offence of causing grievous hurt when he was charged with the offence of armed robbery. For the reasons stated in the lead judgment, I also allow this appeal and set aside the conviction and sentence of the Appellant for the offence of causing grievous hurt punishable under Section 247 of the Penal Code Law of Katsina State.

The Appellant is hereby discharged and acquitted.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment) : The Appellant was arraigned before the High Court of Justice, Kaduna on a charge dated the 7th day of December, 2012.

The Appellant was arraigned along with two others at large on a two count charge reproduced hereunder: COUNT ONE That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and Kenneth (Alias Bayo) (at large) on or about the 10th day of March, 2018 at Manchok in Kaura Local Government Area of Kaduna State agreed and armed yourselves with guns to go and rob residents of Ungwan Hausawa Manchok and in the process you shot and killed one Abubakar Garba Dankera which act you did in pursuance of the said agreement and thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special provisions) Act Cap R11, Laws of Federation of Nigeria.

COUNT TWO ​That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty-three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera.

You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a) & (b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004. The Appellant pleaded not guilty to the charge. The Prosecution opened its case, calling PW1, the IPO to testify as to the circumstances that gave rise to the case. PW1 testified that he was on duty on the 22nd day of September, 2018 and that the Appellant was arrested by the Civilian J.T.F. (vigilante group) and brought to his station.

PW1 testified that he was informed that on the 19th day of September, 2018, the Appellant was arrested and made a confessional statement that he was among those that attacked one Balarabe Ibrahim Danjuma of Hausawa Manchok. That on the 10th day March, 2018, there was an attack and the Appellant and his friends all conspired and entered into Balarabe’s neighbour house and one Abubakar Garba Dankira came out to ascertain the situation and was shot dead. It was said that the Appellant informed them that he was ready to change, thus, the reason for the confession.

The statement was recorded after the Appellant was cautioned and he signed. ​ Even though the Appellant denied making the statement, the statement was admitted in evidence and marked as Exhibit A. The Prosecution also sought to tender the photograph of the man alleged to have been shot by the Appellant and the two co-accused said to be at large. It was admitted and marked as Exhibit B. The Prosecution called PW2, a petty trader who testified that he saw the Appellant in front of the Chief of Moro’a palace when he was brought there by the Civilian J.T.F. (vigilante group).

PW2 testified that on the 10th day of March, 2018 at about 1 pm, he heard gunshots and was informed that one Abubakar Dan Kira had been shot in the stomach. PW2 identified the said Abubakar as the person contained in Exhibit B. He further testified that he was told that on the 22nd day of September, 2018, he was informed that one of those arrested by the local vigilante group confessed to the killing of Abubakar. The Prosecution witnesses were cross-examined by the Appellant’s counsel and they closed their case. The Defence opened its case and called the Appellant as their sole witness.

The witness testified on his behalf that on the 10th day of March, 2018, he went to his farm as he was a farmer. The witness testified that some people came to meet him on the farm and arrested him. That he was put in a vehicle and taken to Mariri and kept in a private room. Then he was asked if he knew Chechet Celestine and another person and he said he knew them as they all lived in the same neighbourhood. He was asked where he got the guns from and he denied ever having a gun.

The Appellant further testified that he was beaten seriously and forced to repeat that he and his friends killed Abubakar and he was recorded. He said he was then taken to the Kaura Police Station and was detained for three weeks. He said he was later given a document to sign and he refused to sign. He claimed to have been beaten seriously. He said he still refused and maintained that he never wrote or thumb printed Exhibit A. Appellant was cross-examined and the matter was adjourned for adoption of final written addresses and then judgment.

While delivering its judgment on the 28th day of August 2019, the trial Court held that by the contents of Exhibit A, it was clear that it was the Appellant that made the said confessional statement and it was made voluntarily and that mere denial of ever making it is of no moment. The learned trial judge held that the evidence placed before the Court was so clear and unambiguous and that the Appellant can be safely convicted on it. The Appellant was convicted on the two count charge and was accordingly sentenced to death by hanging.

Unhappy and appalled with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 25th day of November, 2021, with four grounds of appeal. The Appellant filed his brief of argument which was deemed properly filed and served on the 20th day of January, 2022 and settled by Nnaemeka Otagburuagu Esq.

In the said brief a sole issue for determination was distilled as follows: Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery? (Formulated from Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal) The Appellant has argued that the trial Court failed woefully in establishing the guilt of the Appellant beyond reasonable doubt before going ahead to convict him.

It was further argued that it is settled law that the onus in criminal cases is beyond reasonable doubt and it lies on the prosecution and not the accused to prove his innocence. Reference was made to the cases of HARUNA JATO VS. STATE (2019) 8 NWLR (PT. 1674) and AKPAN BASSEY VS. THE STATE (2019) LPELR – 46910. The Appellant further submitted that the three ingredients to establish the offence of armed robbery must be proved beyond reasonable doubt before the Appellant could have been convicted. Reference was made to the case of OJO VS.

FRN (2008) 11 NWLR (PT. 1099) PAGE 467 @ PAGES 511 – 512. ​ It is the argument of the Appellant’s counsel that the evidence of the prosecution witnesses and the confessional statement marked as Exhibit A fell short of the established ingredients and as such cannot sustain a conviction against the Appellant. It was further stated that the testimonies of PW1 and PW2 were mere hearsay evidence as there was no evidence to corroborate same. It was further argued that the testimony of PW2 had no relationship to the charge as he did not testify as an eye witness.

The Appellant’s counsel also submitted that the testimony of PW1 was fraught with a lot of inconsistencies which made it incapable for being the basis for the Appellant’s conviction as the trial Court cannot pick and choose what to rely on. Reference was made to the case of OSADIM VS. TAIWO (2009) LPELR – 8209 (CA) and NWORU VS. STATE (2018) LPELR – 44640 CA. The Appellant’s counsel submitted that the trial Court failed to evaluate the evidence before coming to a conclusion and thus the failure occasioned a miscarriage of justice. The case of OKEKE VS.

OKEKE (2019) 17 NWLR (PT 1701 PAGE 267 AT 292 PARAS A – B was cited in support. ​ Also, the Appellant’s counsel raised the issue that there was no evidence on record debunking the Appellant’s evidence that he never participated in the armed robbery incident as his evidence was not even considered at all or evaluated by the trial Court. The Appellant further submitted that the trial Court relied on the retracted confessional statement and failed to evaluate the voluntariness of the confessional statement.

It was argued that the Court was bound to evaluate all evidence available to the Appellant for his defence. Reliance was placed on the case of MAFA VS. STATE (2013) 3 NWLR (PT. 1342) PAGE 607 AT PAGE 623. The Appellant’s counsel also stated that the judgment of the trial Court was not based on logical thinking, deducible from facts or admissible evidence before it. The case of STATE VS. ISIAKA (2013) 11 NWLR (PT. 1364) PAGE 162 AT PAGES 188 – 189 was cited in support.

The Appellant’s counsel submitted that with regard to the offence of conspiracy, the Respondent failed to prove the ingredients of the offence of conspiracy and armed robbery against the Appellant. Counsel referred to the cases of ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) PAGE 74 AT PAGE 127 and OFORDIKE VS. STATE (2019) LPELR – 46411. It was argued that there was nothing from the testimonies of PW1 and PW2 showing any meeting of minds between the Appellant and the other co-accused that were at large. It was then submitted that the Court cannot base its decision on speculations.

The case of ONUOHA VS. STATE (2002) 1 NWLR (PT. 748) PAGE 406 was cited in support. It was further submitted that the decision of the trial Court is against the weight of evidence adduced at the trial as far as the Appellant is concerned, as the evidence is not overwhelming to have led to the trial Court convicting the Appellant.

The learned Appellant’s counsel drew the attention of this Court to the fact that before the robbery incident and until he was arrested, PW1 and PW2 had never seen the Appellant and so, there ought to have been an identification parade so as to properly identify the Appellant since he was arrested several months after the crime was committed. Reference was placed on the case of KEKONG VS. THE STATE (2017) LPELR – 42343 SC. Finally, the Appellant’s counsel submitted that the Respondent failed to call the vital witness which is the victim in proof of its case as it was fatal to its case.

The case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) 663. This Court was urged to allow this appeal and acquit the Appellant. ​ The Respondent on their own part filed their brief of argument which was deemed on the 31st day of May, 2022 and settled by Dr. M. T. Adekilekun Esq.

In the said brief a lone issue for determination was distilled as follows: Whether having regard to the facts and circumstances of this case and the evidence adduced at the trial, the prosecution/respondent has not proved the guilt of the Appellant beyond reasonable doubt to have justified the verdict of guilt made against the Appellant. (Distilled from Grounds 1 – 4 of the Notice of appeal) The learned Respondent’s counsel submitted that the guilt of an accused person can be proved by the confessional statement of an accused person, evidence of an eye witness and circumstantial evidence.

Counsel cited the case of AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) PAGE 619 AT 645 PARAS F – G in support. The Respondent’s counsel submitted that the Appellant was convicted of armed robbery and conspiracy and that the trial Court relied on Exhibit A and B. It was argued that the Appellant was convicted of conspiracy based on his confessional statement as conspiracy is usually a matter of inference from surrounding facts and circumstances. The case of IKECHUKWU OKOH VS. THE STATE (2014) LPELR – 225 PAGE 89 was cited in support.

It was also submitted that the Appellant had admitted under cross-examination that he knew the two co-accused persons who were at large. The learned Respondent’s counsel went ahead to submit that the fact that the other two suspects are on the run strongly suggested that a crime was committed by them. On the offence of armed robbery, the Respondent’s counsel argued that the Appellant was convicted of this offence based on Exhibit A, the confessional statement which was recorded in line with the provisions of Section 28 and 29 of the Evidence Act.

It was further submitted that an accused person can be convicted solely on a confessional statement without corroboration. The case of CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 AT 232 – 233 was cited in support. The Respondent’s counsel further submitted that the evidence of PW2 corroborated the confessional statement and that there were no inconsistencies therein at all, and that the trial Court evaluated the evidence adduced before the trial Court before convicting the accused person.

This Court was urged to affirm the decision of the trial Court and hold that the Respondent proved the case against the Appellant beyond reasonable doubt. RESOLUTION OF ISSUES Having read and digested the respective briefs filed by learned counsel for the parties herein, I shall now proceed to determine the appeal and in doing so I shall adopt the issue for determination formulated by the Appellant so as to thoroughly dispose of any point raised in this appeal.

The said issue is again reproduced hereunder as follows: Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery? The trial Court convicted the Appellant of the offence of conspiracy and armed robbery. This instant appeal is based on the Appellant’s dissatisfaction with his conviction at the Court below. Did the prosecution prove the ingredients of conspiracy and armed robbery to secure a conviction against the Appellant?

In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. ​The burden remains on the prosecution and does not shift.

Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.

The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the Court must be an unbiased umpire and must not descend into the arena of conflict. In the case of OJO VS.

STATE (2018) 15 NWLR (PT. 1643) PAGE 527 AT 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are: “(a) through a voluntary confessional statement of the accused person; and/or (b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or (c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.” In the case of JATO VS.

THE STATE (2019) 8 NWLR (PT. 1674) PAGE 326 PARAS E – F, it was held by the Supreme Court per Kekere-Ekun, JSC that in a charge of armed robbery, the prosecution must prove the following essential ingredients: (a) That there was a robbery or series of robberies. (b) That each robbery was an armed robbery; and (c) That the accused person was the robber or one of those who participated in the armed robbery. In the case of MARTIN EGBUFOR VS.

THE STATE (2019) 5 NWLR (PT. 1665) 260 AT 277 PARA D, it was held by the Supreme Court that where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the Appellant’s guilt beyond reasonable doubt. ​ The prosecution in this case tendered the confessional statement of the accused person and it was admitted in evidence and marked as Exhibit A.

I have read through the judgment of the trial Court and I shall quote a part of it as contained on page 38 of the Record of Appeal: “Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law.

By the said abscondiment (sic) by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere, somehow and I so hold.” From the judgment quoted hereinabove, it is clear that the Appellant was convicted solely on the contents of the Exhibit A, his confessional statement. In the case of SULE VS.

STATE (2018) 10 NWLR (PT. 1628) PAGE 564 PARAS D – G, it was held that: “Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness.

A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.” When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the Accused has willing offered himself to be slaughtered.

A direct, voluntary and unequivocal confessional statement is solid evidence that can be used to convict an accused person. In the instant case, the Appellant was convicted solely and only on the strength of the confessional statement. The question that must be answered is: was the confessional statement strong, direct, positive, unequivocal and free from doubt, capable of securing a conviction against the Appellant? In the case of SULE VS.

STATE (SUPRA), it was held that: “The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person.

It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved.

In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.” I have read the confessional statement which is Exhibit A and it is stated here by the Appellant or at least let us assume it is the Appellant that he alongside three other men carried out a robbery operation at Durumi, Abuja. Also, it was stated that they stole the sum of N50,000 and killed three persons there.

He further stated that he alongside Chechet alias Celestine and Kenneth alias Bayo went for another robbery operation and the sum of #80,000 was stolen from a shop of which he was given the sum of N25,000 as his share. He stated that no provisions were stolen from the shop.

I have read the charge upon which the Appellant was brought before the trial Court and count two states: “That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera.

You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a)&(b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.” ​ First and foremost, how did the Respondent arrive at these figures? Assuming the confessional statement is true, the Appellant here confessed to stealing a total sum of N130,000 from two separate robberies i.e. N80,000 in the first robbery and N50,000 in the second one. How then did the Respondent come about the total figure of N1,943,000 as the sum of money stolen and N700,000 as value of goods stolen?

Who gave the Respondent the figures? Who is the shop owner? Where is the shop owner? What kind of goods were stolen? What is the specific number of goods stolen that amounted to the value of N700,000? I am taken aback at how the Respondent exaggerated the figures contained in the charge and lazily failed to prove it. What do they take the Courts for? A place where you can just hike prices and value of goods without any evidence to prove same so as to tighten a heavier stone around the neck of the accused so that he can drown?

Why did the prosecution not call the shop owner or whoever gave them the figures of the money stolen and value of goods stolen as he or she would have been a vital witness in proof of the crime? In the case of UZIM VS. STATE (2019) 14 NWLR (PT. 1693) PAGE 419 AT 441 PARA D – E, the Supreme Court per Augie, JSC described who a vital witness is: “A vital witness is a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. ONAH V STATE (1985) 3 NWLR PART 12 PAGE 236 SC.

It is well settled that the prosecution is entitled to call only the witnesses that it considers relevant to its case. In effect, it is for the prosecution to determine the direction of its case and which witness to call to prove its case and once it discharges that burden on it to prove its case beyond reasonable doubt it does not matter.” Furthermore, it was held in the case of UZIM VS. STATE (SUPRA), that: “The prosecution has a duty to prosecute the accused within the ambit of the law.

To that end, the law grants it the discretion to call any number of witnesses or adduce any particular evidence to prove its case beyond reasonable doubt.” Simply put, no one can dictate the specific witnesses the prosecution must call in proof of its case. It is totally within their discretion. However, where the prosecution claims to have gathered information from a source or a person and they lazily dump the information before the Court without trying to prove same at all, then it can be safe to say that they have failed to call a vital witness.

The shop owner or whoever is in a position to state the goods stolen or the money stolen would have been a vital witness for the prosecution to nail the coffin over the Appellant. The learned Appellant’s counsel has argued in his brief of argument that the testimony of PW1 and PW2 were hearsay evidence. I have read through the testimony of PW1 and he testified clearly that: “On 22-09-18, I was on duty at about 1pm the civilian J.T.F. (alias Yam Bula) attached to Mariri, Lere L.G.C. arrested and brought to our police station the defendant.

That via information on 19-09-18 at about 4pm, they arrested the defendant who made a confessional statement before them that he was one among those that attacked one…” The Appellant’s counsel has argued that the testimonies of PW1 and PW2 amount to hearsay and thus they should be disregarded. PW1 is the Investigating Police officer and he clearly testified about all he discovered during the course of his investigation of the case. He recorded statements from PW2 and the Appellant. In the case of OBOT VS.

STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that: “… it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating police officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police officer obtains statements from accused persons and witnesses alike. He thereafter testifies in Court giving a synopsis of what he did during the investigation.

He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police officer is not by any standard hearsay.

He gives an account of what he has done in the process of his investigations.” The testimony of PW1 cannot be said to be hearsay evidence since his job as the Investigating Police Officer is to give direct evidence of his findings even if he garnered such information from another person.

However, I cannot help but wonder why the person referred to as J.T.F. Civilian (alias Yam Bula) was not called as a witness by the prosecution. PW2 had also stated in his testimony contained on page 29 of the Record of Appeal that: “I am a petty trader. I saw defendant once in front of the Chief of Moroa’s palace when he was brought there by the Civilian J.T.F (Vigilante group). I do not know why the vigilante group brought the defendant there If the J.T.F.

Civilian (aka Yam Bula) is so well known by PW1 and PW2, why was he not called as a material and vital witness to help the prosecution’s case against the Appellant? Apparently, he was the one that arrested the Appellant and he would have been able to shed more light as to the circumstances that led to the arrest of the Appellant and possibly help in establishing the guilt of the Appellant. In the Court of Appeal case of AJOKITI VS. STATE (2018) LPELR – 45234 (CA) (PP. 21 – 24, PARAS.

C – B) it was held thus: “The law is well settled that the prosecution has an uphill task of proving the guilt of the Appellant beyond reasonable doubt. The failure of the prosecution to call Cpl Ojo, the only eye witness who saw and arrested the Appellant with the stolen vehicle was certainly vital to the case for the prosecution as it was tantamount to withholding evidence, which provokes the presumption of law that such evidence that could be but not produced, would if produced have been unfavourable to the prosecution.

It is pertinent that the only witness that could have given direct and admissible evidence in respect of the allegation levied against the Appellant was, for reasons best known to the Respondent, not called to testify and tender the controversial confessional statement in Court.

One wonders why the prosecution fails to call such critical eye witness like Sgt Ojo who arrested the Appellant and also recorded the alleged confessional statement of the Appellant before transferring him to Benin City and who later came to Benin to investigate the case by visiting the scene of crime and the home of the Appellant. However, the prosecution decided to call PW1 and 2 who were merely informed about the incidence by Sgt Ojo, his critical stance notwithstanding.

It is pertinent that the evidence of P.W1 and 2 who were merely told that the Appellant was arrested in possession of jeep and some ammunition was hearsay in so far as it seeks to prove the truth of that information. Sgt Ojo should have testified and his testimony be subjected to the rigours of cross-examination as an eye witness and also being the person who not only arrested the Appellant in possession of the recently stolen jeep but also recorded the alleged controversial confessional statement made by the Appellant that led to his conviction and sentence, the subject of the instant appeal.

The absence of the evidence of this critical witness renders the evidence adduced on behalf of the prosecution fall short of proof beyond reasonable doubt as required by law. See ADEREMI OMOTAYO v. THE STATE (2012) LPELR – 9358 (CA). The presumption of law arising from such failure to call this important witness is that his evidence would have been unfavourable to the prosecution’s case. The point that needs be emphasised is that the presumption under Section 149(d) of the Evidence Act applies against the prosecution because it amounted to withholding of critical evidence.

The principle operates where a party has in fact withheld any particular piece of evidence and failed call any direct evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See Bello v. Kassim (1969) NSCC 228 at 233.

The fact that the Respondent called PW1 and 2 whose evidence was based on what Sgt Ojo told them instead of calling Sgt Ojo himself, which clearly amounted to withholding evidence and thereby provokes the presumption of the law against the Respondent that if called such evidence would have been unfavourable to the Respondent. It further renders the evidence against the Appellant fall short of the standard of proof in criminal cases, which is beyond reasonable doubt.” The case giving rise to this appeal is almost on all fours with this case cited hereinabove. Why was the Appellant arrested?

What led to his arrest? What made J.T.F. Civilian (aka Yam Bula) and his vigilante group to arrest the Appellant? Where is the recorded confessional statement? Is it the same statement as with the content of Exhibit A? I believe that all these grey areas of ambiguity would have been settled if the prosecution had called J.T.F. Civilian (aka Yam Bula) as a witness. ​ I still do not know the importance of Exhibit B in this instant case. Why did the prosecution tender the picture of a deceased person who they claim is one Abubakar when the Appellant is not standing trial for murder?

Even if they argue they tendered Exhibit B to prove that the said Abubakar died during the robbery attack carried out by the Appellant and his co-accused, I do not see how they successfully established it. I do not know what the prosecution was trying to establish by calling PW2 to testify as a witness. From the testimony of PW2, he only identified Exhibit B as the picture of the Abubakar alleged to have been killed during the robbery attack. PW2 did not know the Appellant. He was not at the scene of the robbery. He was informed about everything he knows about the case.

If this was a murder case against the Appellant, I will know that the reason PW2 was called as a witness was to establish the first ingredient in proving murder which is that there is a deceased person. But in this instant case, the testimony of PW2 and Exhibit B did not establish any of the ingredients of armed robbery and conspiracy. Looking at the judgment of the learned trial judge, I do not know and I cannot see the evidence he relied on in convicting the Appellant of count 2 of the charge.

The learned trial judge clearly stated at page 39 of the Record of Appeal that he relied on the exhibits in reaching this finding. The two exhibits before the Court were the confessional statement and the picture of a deceased person called Abubakar. Which of the ingredients of the offence of armed robbery did the prosecution prove? Did they prove that there was a robbery or series of robberies? Did they prove that each robbery was an armed robbery and that the accused person was the robber or one of those who participated in the armed robbery?

The prosecution had relied on the confessional statement wherein it was alleged to have been stated by the Appellant that he took part in a robbery operation at Durumi, Abuja where three people were killed. Is there any evidence before this Court to prove that indeed a robbery operation took place at Durumi, Abuja? Did the prosecution ascertain that indeed there was a robbery at Durumi, Abuja and the Appellant participated in it? Was the trial Court right in convicting the Appellant solely on the confessional statement? In the case of MUSA VS.

STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F; 318 PARAS F – G, it was held per Eko, JSC that: “Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions.

That is: (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statement of fact made in it true as far as can be tested? (d) Is the confession possible? (e) Is it consistent with other facts which have been proved?” In the case of ONYENYE VS.

THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 AT 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained under duress and those merely retracted as follows: (1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non- recognizable legal ways, there would be need for a trial within trial. (2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.” Reading through page 30 of the Record of Appeal where the defence of the Appellant is contained, which I reproduce hereunder as follows: “My hands were then tied behind me and my body hung on a plank above my head.

I was then beaten with sticks and machetes till I became unconscious before I was released. Water was poured on me and I regained consciousness. They threatened to kill me that whatever they said I should say it. While the knife was still placed on my neck, they asked me to say that it was myself, Celestine and Kenneth that killed Abubakar. As I repeated what they said, they brought their phone and recorded what I said. That is all I know here. I do not know those people that came and arrested me. I was then brought to Kuara Police Station and handed over to the Police.

At Kaura the police asked whether the allegation was true and I denied it. I was then sent to police cell. For 2 to 3 weeks nobody said anything to me. After that I was released with a directive that I should sign a certain document, but I refused. The police then took a stick and started hitting me at my joints, both hands and legs. I still refused and I was brought to Kafanchan Police headquarter, I was taken to Court.

I did not write Exhibit A and neither thumbprinted same… I am not the marker of Exhibit A.” From the above statement made by the Appellant, it is clear that he did not retract the confessional statement by merely denying ever making same. The Appellant stated that he did not voluntarily thumbprint the said confessional statement as he was detained and severely beaten. The trial judge had stated that he was “fully convinced that it is a voluntary confession here” (page 38 of the Record of Appeal).

How did the trial Court reach such a decision without conducting the trial within trial which is a duty and obligation placed on him by the law when the issue of involuntariness in making a confessional statement is raised? In the case of OFORDIKE VS.

STATE (2019) 5 NWLR (PT. 1666) PAGE 395 AT PAGE 424 PARAS H – C, it was held per Nweze, JSC that: “in this sort of situation, the trial Court is under obligation to conduct a trial within trial (also known as voire diew or mini trial) to determine the veracity or otherwise of the claim… the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable.

The cases on this point are legion; they are countless. OGUDO V THE STATE (2011) 12 SC PART 1 PAGE 71, THE STATE V RABIU (2013) 8 NWLR PART 1357 PAGE 585.” The law placed a duty on the trial Court to conduct a trial within trial when the issue of involuntariness is raised with regard to confessional statements. In this case, this is not a matter of resiling, denying or retracting the confessional statement as held by the learned trial judge and as argued by the Respondent in their brief of argument.

The Appellant had stated clearly that he was beaten, never made the statement and neither did he thumbprint same. I therefore hold that the learned trial judge failed to discharge the responsibility and obligation placed on him by the law to order a trial within trial to eliminate the issue of involuntariness.

Also, the learned trial judge failed to test the veracity of the confessional statement as stated in the case of MUSA VS. STATE (SUPRA). The said robbery that took place in Durumi Abuja was never verified and no weapon was ever recovered from the Appellant. The learned Appellant’s counsel has raised the point that there ought to be an identification parade since there is an issue regarding the identity of the Appellant since he was not arrested at the scene of the crime but was arrested several months after the crime was committed. In the case of OKOSI VS.

STATE (1989) 1 NWLR (PT. 100) PAGE 642 AT PAGE 657 PARAS F – G, the Supreme Court held that: “The object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and be seen to be fair, so that it will not be seen that the attention is directed to the suspected person instead of equally to all person paraded.” In the case of SEUN VS.

STATE (2019) NWLR (PT. 1673) 144 AT PAGE 156 PARA D – F, Supreme Court held that identification parade is not necessary where the victim or witness recognizes the offender or accused person as one of those who robbed him as the matter was still fresh in his mind. In the case giving rise to this appeal, there is no single witness that could ascertain that they were at the scene of the robberies neither did any eye witness place the Appellant or someone that could possibly be him at the scene of the crime.

I do not think that the issue of identification parade is relevant and necessary in the instant case since nobody saw anybody at the said robbery/robberies. In the case of OLADEJO VS. STATE (2018) 11 NWLR PART 1630 PAGE 238 @ 246 PARAS F-G, it was held per Galinje, JSC that: “Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence.

A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act by unlawful means… To constitute an offence of conspiracy, the prosecution must prove: (1) That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. (2) Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement. (3) That each of the accused individually participated in the conspiracy.” Did the prosecution prove the ingredients of conspiracy against the Appellant?

I have read through the records of appeal. The Supreme Court gave an apt description of the offence of conspiracy in the case of ADESINA KAYODE VS. THE STATE (2016) LPELR – 40028 (SC) P. 47, PARAS. A – F, where Ariwoola, JSC held: “Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them. See Folorunsho Alufohai Vs. The State (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt. 765) 198.

In order to secure conviction on a count of conspiracy, the prosecution must establish the elements of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy. However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offense. See generally, the cases of OMOTOLA & ORS VS. THE STATE (2009) 78 NWLR (PT. 1139) 148; (2009) 2 – 3 SC 7 and OBIAKOR VS.

STATE (2002) 10 NWLR (PT. 774 – 776) 612 AT 625. In AMACHREE VS. NIGERIAN NAVY (2003) 3 NWLR (PT. 807) 256, the Court held the view that it was improper for the prosecution to rely on the evidence in proof of the commission of the substantive offence by an accused person and others to infer conspiracy. At any rate, an offence of conspiracy can be committed where persons have acted either by agreement or in concert. Therefore, bare agreement to commit an offence is sufficient and the actual commission of the offence is not necessary.

In this case, I cannot see any iota of evidence led by the prosecution to show that there was a conspiracy to commit the offence of conspiracy to commit robbery between the Appellant and the two people alleged to be at large. There is no witness and no testimony on record that even show that the Appellant and the two persons at large even committed a robbery together or had a special relationship together prior to the robbery. In the testimony of the Appellant during his defence, he said that: “they asked me what connected me with those two people.

I said I knew them because I had been seeing them in our area.” Did the prosecution establish that a relationship exist between the Appellant and the two at large? I cannot see anything in proof of that. It is totally wrong of the prosecution to rely on the evidence they led to prove the substantive offence of armed robbery to also prove the offence of conspiracy.

I could not help but consider the portion of the trial Court’s judgment contained on page 38 of the Record of Appeal where the learned trial judge held that: “Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law.

By the said abscondment by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere somehow and I so hold.” This is sheer speculation and this is an act that is forbidden in our Courts. There is no evidence linking the Appellant and these two persons at large. There is no evidence to show that efforts were even made to apprehend these two persons claimed to be at large because at least, it was J.T.F.

Civilian (aka Yam Bula) that arrested the Appellant and the IPO, PW1 never made mention of trying to track down this two persons claimed to be at large. Since there is no evidence led to prove the offence of conspiracy, the learned trial judge has no power in law to fill the lacuna in the prosecution’s case with speculations and suspicions. In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held that: “it is not part of the assignment of any Court to speculate. It must avoid it.” In the recent case of IKEMEFUNA & ORS VS.

ILONDIOR & ORS (2018) LPELR – 44840, it was held that: “The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.” See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65. Even if the learned trial judge arrived at this conclusion based on circumstantial evidence, it still had to meet up with the requirement of the law.

The law is trite that where the evidence on ground is mainly circumstantial, the surrounding circumstances have to be examined together for the inference to be arrived at that the Accused/Appellant committed the offences charged. Where such evidence is found to be positive compelling and with mathematical precision and point to the guilt of an accused person, the prosecution had discharge the onus of proof on it. See generally, the cases of SUNDAY UDOR VS. STATE (2014) LPELR – 23064 (SC); (2014) LCER – 27897 (SC), OGIDI & ORS VS. STATE (2005) LPELR – 2303 (SC) Pp. 10 – 11, PARAS. F – B.

The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the prosecution has proven its case beyond reasonable doubt, but if there is doubt whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person. See the cases of IBEH VS. STATE 1997 LPELR – 1389 (SC) and ABBEY VS. STATE (2013) LPELR – 20732 (CA).

In the circumstance, I am of the firm belief and opinion that the Prosecution failed woefully in proving the offences for which the Appellant was charged before the trial Court beyond reasonable doubt. This appeal is therefore allowed and the conviction of the trial Court is hereby quashed. The Appellant is hereby discharged and acquitted and he shall be released from prison custody forthwith.

AMINA AUDI WAMBAI, J.C.A.: I agree.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

MISTURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Judgment) : The appellant herein and one other person were arraigned and tried before the High Court of Delta State for conspiracy to commit kidnapping, kidnapping, demanding with menaces and armed robbery punishable under Sections 364, 406 and 516 of the Criminal Code Law, Cap. C21, Volume 1, Laws of Delta State and Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.

II, Volume 14, Laws of the Federation of Nigeria, 2004. ​The case of the prosecution was that on 31/3/2012, PW1 driving a Toyota Corolla on his way from work stopped for his friend, Elvis Alfred who was with him in the car to come down in front of his house. As soon he stopped, another car double crossed them. Five gunmen came out of the car, started beating him and his friend. They put him inside the booth of the car. His friend was put in the back seat of the car. After driving the car for some time, the car stopped, PW1 and his friend were brought out of the car.

The car and all the items that were in the car have not been found till date. PW1 and his friend were immediately blindfolded, dragged into the bush and chained to a tree. Two persons were guarding them in the bush. On the 5th day, they were able to escape and made their way to Ugheli/Warri Road where they found two soldiers at NEPA office. PW1 was able to contact his brother who in turn contacted the Anti-Terrorists Squad. The brother went with the squad to meet them and they led the squad to the place where they were detained and waited until the two people guarding them showed up.

The appellant and his co-convict were the two persons that showed up and they were arrested. Ammunitions and other items were recovered from the camp. The appellant and his co-convict confessed to being part of the kidnapping gang that kidnapped PW1 and his friend. The prosecution called two witnesses. The appellant testified in his own defence and called no other witness. The lower Court in its judgment delivered on 19/6/2017 by F.N.

AZINGE, J found the appellant and his co-convict guilty of conspiracy to commit kidnapping, kidnapping and armed robbery and sentenced them accordingly. ​The appellant was aggrieved by the judgment. He filed a notice of appeal against the judgment on 12/3/2021 having been granted an extension of time by an order of this Court made on 4/3/21. An amended notice of appeal filed on 10/9/21 was deemed as properly filed and served on 9/2/22.

The grounds of appeal without their particulars are as follows: GROUND 1 The Learned Trial Judge erred in law when he found the appellant guilty of the offence of armed robbery (count iv of the information) and convicted the appellant on the offence of armed robbery. GROUND 2 The Learned trial judge erred in law when he found the appellant guilty of Counts I and II of the information which borders on the offence of kidnapping and convicting the appellant for the offence of kidnapping.

GROUND 3 The decision of the trial Court is unreasonable and cannot be supported, having regards to the evidence presented by the prosecution. ​The appellant’s brief of argument was filed on 10/9/2021. The respondent’s brief of argument was filed on 3/11/21. Appellants reply brief was filed on 9/11/21. The briefs were deemed as properly filed and served on 9/2/22.

The appellant formulated the following issues for determination: I) Whether the trial Court was right in finding the appellant guilty of Count IV of the information and in convicting the appellant on the said count IV? ll) Whether the trial Court was right in finding the appellant guilty of Counts I & II of the information and in convicting the appellant on the said Counts I & II?

The respondent formulated the following sole issue for determination: Whether the learned trial Judge was right in holding that the prosecution proved the charges wherein the appellant was convicted beyond reasonable doubt? The appellant’s issues are hereby adopted for the determination of this appeal. On issue 1, the appellant’s counsel submitted that the prosecution failed to prove all the elements of the offence of armed robbery beyond reasonable doubt as required by law. He referred to IBRAHIM V. C.O.P (2020) 15 NWLR (PT. 1746) 122 AT 146. OSUAGWU V. STATE VOL. 219 LRCN AT 219.

He submitted further that there was no oral or documentary evidence on the type or brand and ownership of the car PW1 was driving and other items that were allegedly taken by the robbers. According to counsel, the particulars and specification of what was robbed is very material to proving the offence of armed robbery because without stating specifically what was stolen and proving that it was actually stolen, a person cannot be convicted for robbery or armed robbery.

He contends that the failure to call Elvis Alfred, the co-victim of the alleged robbery who was in the car with PW1 and eyewitness of the incident to testify before the Court is fatal to the case of the prosecution. He also submitted that there was no evidence before the lower Court that violence was used in order to obtain or retain the vague and unproven items allegedly taken by the unknown gun men.

He argued that the prosecution failed to prove the mens rea of the offence of robbery as the entire evidence before the Court suggests that the intention of the unknown gun men was to kidnap but not to rob the victims. He analyzed the evidence of PW1 that the appellant and his co- convict were the persons guarding them and not his captors and the evidence of PW2 surrounding the circumstances of the arrest of the appellant and his co-convict in the bush, he submitted that the finding of the lower Court that the appellant was one of the persons that guarded PW1 is perverse.

Counsel argued that assuming but not conceding that the content of the appellant’s statement is true, the statement does not prove that the appellant had the opportunity to commit armed robbery and it was not corroborated by any evidence outside the statement which statement suggested only the offence of kidnapping. He referred to ALI v. STATE (2019) 14 NWLR (Pt. 1692) 314 (CA).

The respondent’s counsel in his response referred to the evidence of PW1 that five (5) armed men attacked them and the Toyota Corolla car he was driving, Ipad, Nokia handset and the N80,000.00 (Eighty Thousand Naira) in the car were taken away. He submitted that the credible evidence having not been controverted under cross-examination was rightly relied upon by the trial Court. He referred to STATE V. OLADOTUN 2011 VOL. 199 LRCN PG 65 AT 67 R.1.

He submitted that proof of ownership of an item taken during an armed robbery operation is not one of the ingredients of the offence of armed robbery under the Robbery and Firearms (Special Provisions) Act under which the appellant was charged. He further submitted that armed robbery is not one of the offences that require or need corroboration and PW1 is not an accomplice for his evidence to require corroboration.

In reaction to the failure to call the other victim of the alleged robbery, he submitted that the law is trite that evidence of a single credible witness is sufficient to ground a conviction. He referred to ESENE V. STATE 2017 ALL FWLR (PT 910) PG 338 AT 345 R.9. The reply of the appellant’s counsel was a mere repetition or emphasis on his submissions and arguments in the appellant’s brief of argument.

RESOLUTION The law is trite that for the prosecution to secure a conviction for a particular offence, all the elements of the offence must be proved beyond reasonable doubt by cogent, credible and legally admissible evidence.

The elements of the offence of armed robbery which must be proved beyond reasonable doubt are: (a) That there was a robbery or series of robbery; (b) That each robbery was an armed robbery; and (c) That the person accused of the robbery was one of those who participated in the robbery or series of robberies. The prosecution can discharge that burden by any or a combination of the following means: (a) The confessional statement of the accused person(s); or (b) Circumstantial evidence; or (c) Evidence of eyewitness of the crime. See OPEYEMI V. STATE (2019) LPELR- 48764(SC) AT 26(C). SEUN V.

STATE (2019) LPELR-47548(SC) AT 18(C). MINDI V. STATE (2020) LPELR-52897(SC) AT 31-32(D-E). DONDOS V. STATE (2021) LPELR-53380(SC) AT 8-9 (B-B). In the instant case, the prosecution relied on the evidence of an eyewitness, the victim of the crime and the confessional statement of the appellant, exhibit H.

On the offence of armed robbery, the lower Court held as follows at pages 110-111 of the record of appeal: “It was the evidence of the P.W.1 that the Corolla car he was driving in which he had his HP Laptop computer valued at N80,000 (Eighty Thousand Naira) only, one I-pad and two Nokia cell phones in the car were taken away from him by five armed men on the fateful day, till date, he has not found the car nor the items in the car.

There is evidence adduced before the Court by the P.W.1 that there was a robbery on the 31st of March, 2012 and the five men who robbed him of these items were armed. The Learned Defence Counsel contended that the evidence adduced by P.W.1 did not link the accused persons to the offence of armed robbery. The accused persons confessed in Exhibits ‘H’ and ‘J’ of being members of the gang and that they took part in the event of the 31st day of March, 2012. The accused persons can therefore not extricate themselves from the robbery carried out by members of their gang who are at large.

They are collectively and individually responsible for the acts of their gang. See Section 7 (a) (b) (c) and (d) of the Criminal Code Cap. C. 21, volume 1, Laws of Delta State of Nigeria, 2006. Where more than one persons are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. See NWANKWOALA V STATE (2006) 14 NWLR (PT. 1000) 663 AT 682-683.

I hold the view that the Prosecution has established all the essential elements of the offence of armed robbery reasonable doubt.” ​I have carefully considered the above finding and the entire evidence of PW1 including his statement, exhibit A which was made at the earliest opportunity after he and his co-victim escaped from the bush where they were held by the kidnappers. The entire evidence of both the prosecution and the defence points irresistibly to kidnapping not armed robbery. PW1 himself confirmed this in his statement when he stated that he and his friend were kidnapped.

In BABALOLA & ORS. V. THE STATE (1989) LPELR- 695(SC) AT 45-46(B-A) the Supreme Court held that “The full definition of every crime contains expressly or by implication a proposition as to the state of mind.” Mens rea is a necessary ingredient of the offence of armed robbery. The intent and the act must both concur to constitute the crime. It must be established by the prosecution as positively as any other fact constituting the offence and its absence or failure to prove the requisite mens rea beyond reasonable doubt would entitle the accused to a verdict of an acquittal.

Armed robbery is stealing plus the use of violence to take or retain an item taken from a person. What that means is that there must be a demand with threat of violence made to a person to intimidate him to part with the thing stolen or to retain it. The presence of the person alleged to have been robbed at the time of taking the item and threat or use of violence to take the item from him or to retain it after the taken is therefore an essential element of the robbery which must be established beyond reasonable doubt by the prosecution.

From the entire scenario described by PW1, it is clear that the aim of the attacker was to kidnap PW1 and his friend. From the entire evidence on record, by the time the unknown gunmen drove the car away with its content, PW1 and his friend had been taken into the bush. The action of the unknown gunmen in driving away the car and taking its contents after handling PW1 and his friend to the appellant and his co-convict amount to stealing.

Therefore, I do not agree with the lower Court that there was a robbery and that the robbery was an armed robbery. ​Even, if the actions of the unknown gunmen technically amount to armed robbery, the most important element of the offence of armed robbery is the identity of the armed robber or robbers. The evidence of PW1 was that he does not know his attackers or captors. His evidence that he and his friend were blindfolded throughout the four days they spent in the bush also confirmed that he did not see any of the two guards physically.

He only recognized the appellant and his co-convict as the persons who were arrested by the Anti-Terrorist Squad in the bush. The evidence of PW1 cannot be relied on to conclude that the appellant participated in the alleged armed robbery. ​The lower Court relied heavily on the appellant’s statement, exhibit H. I have perused exhibit H. There is nowhere in exhibit H that the appellant admitted being a member of an armed robbery gang or the occurrence of the armed robbery for which he was convicted.

I cannot find anything which suggests even remotely that the appellant agreed to participate or that he participated in any armed robbery. There is nothing in exhibit H that suggests that the appellant knew that any armed robbery was going to happen or had happened before he was called by one Aniko to come to Ibru University land. The appellant only narrated how he was called on phone by Aniko to come to Ibru University land and what he saw when he got there. He also narrated how two men were brought and one of the two was brought out of the boot of the car he saw there.

They all moved into the bush where one JK chained the two men to a tree. Aniko instructed the appellant and his co-convict, Vote Sibitor and JK to be taking care of the two men. He attempted to outsmart the others by collecting the phone number of one of the hostage’s brother, started negotiation with him and tried to collect ransom behind the others. There is nothing in the appellant’s narration that amount to confession to the offence of armed robbery.

The law is settled that a Court can convict solely on the confessional statement of an accused person. However, the confessional statement must be direct and positive to the offence the accused is charged for.

It is also trite law that before a confessional statement could result to conviction of an accused person, it must be unequivocal in the sense that it leads to the guilt of the accused. Where the alleged confessional statement is capable of dual or more interpretations in the realm of guilt and non-guilt, a trial Court will be hesitant to convict the accused but it should instead give him the benefit of doubt. See NWEZE V. STATE (2017) LPELR-42344(SC) AT 32-33(A-E).

If the lower Court had properly and carefully considered the appellant’s statement vis-a-vis the elements of the offence of armed robbery and the conditions for reliance on a confessional statement, the Court would not have come to the conclusion that the prosecution established all the essential elements of the offence of armed robbery beyond reasonable doubt. The evidence of PW1 and the appellant’s statement in my view cannot sustain the conviction of the appellant for armed robbery. There is no doubt that exhibit H is a confession to kidnapping.

However, a confession to kidnapping cannot translate to a confession to armed robbery. See STATE V. AZUMA (2020) LPELR-50378(CA) AT 30-31(C-C). NZEGBUNE V. STATE (2020) LPELR-49670(CA) AT 25-26(D-E). ANADUE V. STATE (2020) LPELR-49699(CA) AT 23-24(C-C). The elements of the offence of kidnapping are not the same as that of robbery. They are distinct and separate offences. Issue 1 is therefore resolved in favour of the appellant.

​On issue 2, the appellant’s counsel posited that the lower Court was wrong in convicting the appellant for conspiracy to kidnap and kidnapping as there was no evidence to sustain same. He contends that the trial Court was wrong when after disbelieving the prosecution’s evidence as it relates to count III, an offence of demanding with menaces, went ahead to convict the appellant on counts I, II and IV on the basis of the same evidence. According to counsel, that amount to approbation and reprobation which is not supported by the law. He referred to NYAKO V.

A.S.H.A (2017) 6 NWLR (PT.1562) 347 (SC). He argued that since the Court held that there is no conclusive evidence to show that it was Henry Anyadike that was called by the kidnappers, the entire evidence of PW2 that a case was reported to the police and they went to rescue the victims based on a call from Henry Anyadike are all falsehood, having no foundation to stand on. He also submitted that failure to call Shedrack Anyadike and Elvis Alfred who according to him were the victims of the crime and are material witnesses is also fatal to the case of the prosecution.

In his response, the respondent’s counsel submitted that the evidence on record established all the elements of the offence upon which the appellant was convicted. On the elements of the offence of kidnapping, he referred to OKASHETU V. STATE (2016) ALL FWLR (PT 861) PG 1262 AT 1268 R.5. OLADIPUPO v STATE (2014) ALL FWLR (PT 712) PG 1727 AT 1731 R5. He submitted that it is not in doubt from the evidence on record that PW1 was kidnapped as it is trite law that the offence of kidnapping is complete when the victim is carried away against his wish.

He further submitted that exhibit H shows that the appellant belongs to a gang of kidnappers and his duty or role is to watch over their victim or hostage. He argued that the appellant may not necessarily be among those who did the kidnapping of PW1 and his friend at the point of kidnapping but he belongs to the gang of kidnappers. Counsel also argued that by virtue of Section 7 of the Criminal Code Law, the appellant partook in the offences wherein he is convicted by the trial Court.

According to counsel, the reliance of the lower Court on exhibit H to convict the appellant cannot be faulted as the said retracted confessional statement fully satisfied the conditions required by law. He referred to OGUDO V STATE (2011) VOL. 202 LRCN PG 1 AT PG 11 R4.

RESOLUTION Section 364 of the Criminal Code Law of Delta State under which the appellant was charged for the offence of kidnapping provides that: Any person who….. (1) Unlawfully imprisons any person, and takes him out of Nigeria, without his consent; or (2) Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.” It has been firmly established by a long line of cases that for the prosecution to secure a conviction for the offence of kidnapping, it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse.

See OKASHETU V. STATE (SUPRA), (2016) LPELR- 40611(SC) AT 15-16 (F-B).

On the offence of kidnapping, the lower Court considered the evidence of PW1, PW2 and exhibit H, the confessional statement of the appellant. The Court held that all the elements of the offence were proved beyond reasonable doubt.

​The evidence of PW1 was clear and unequivocal. He narrated vividly the events that happened from the time they were attacked and taken away in the car he was driving up to the time they escaped and the eventual arrest of the appellant and his co-convict. His evidence was not discredited under cross-examination. The evidence of PW2 confirmed the circumstances which led to the arrest of the appellant and his co-convict.

The confessional statement of the appellant also confirmed his arrest when he and his co-convict went to the bush where PW1 and his friend were chained to a tree as they had been doing in the previous days. The sum total of the appellant’s statement is that his role is to guard persons kidnapped and held hostages which he did in the instant case. I stated earlier that PW1 could not have seen the faces of the people guarding him and his friend in the bush.

However, when he escaped, he told the police that he was sure that the two people who had been guarding them would come to the bush in the morning as they used to do. The appellant and his co-convict came as usual. Upon their arrest, the police conducted a search at the camp and recovered various items including ammunitions. All these were confirmed in the appellant’s statement.

The confession of the appellant about his role in the kidnapping and detention of the appellant and his friend was direct, positive and unequivocal.

Where an accused person by his confessional statement identifies himself as a participant in the commission of an offence, his identity and participation in the offence charged become a non-issue because a free and voluntary confession is the strongest evidence against an accused. See PHILIP V. STATE (2019) LPELR-47388(SC) AT44-45(D-E). The lower Court subjected the appellant’s statement to the tests laid down by law to ascertain the truth or otherwise of the statement and held that the appellant’s confession is consistent with other ascertained facts which were established before the Court.

The findings and conclusion of the lower Court are unassailable.

When the prosecution sought to tender the appellant’s statement as an exhibit, the appellant’s counsel raised objection on the ground that the signature on statement is not that of the appellant. The lower Court in line with the principle established by a plethora of decided cases admitted the statement in evidence. If an accused person resiles from his confessional statement it is his duty to explain to the Court as part of his defence the reason for the inconsistency. See ADISA V. STATE (2015) 4 NWLR (PT.1450) 475. OKOH V.

STATE (2014) LPELR-22598 (SC) AT 28-29 (F-E), (2014) 8 NWLR (PT.1410) 502. ILIYASU V. STATE(2015) LPELR-24403(SC) AT 72(A-D), (2015) 11 NWLR (PT.1469) 26.

In his evidence before the Court, the appellant denied signing exhibit H. He also denied being arrested in the bush. However, under cross-examination he admitted the fact that it was the first time he told the story of being arrested at Ukpiovwin Town Junction. Since the content of exhibit H was not challenged in any way and the lower Court subjected it to the laid down tests and found it to be true, the lower Court was correct to rely on it along with the evidence of PW1 and PW2 to convict the appellant for conspiracy to kidnap and kidnapping.

The appellant’s statement leaves no room for any doubt about his participation in the crime.

It is settled law that an accused person can be convicted solely on his confessional statement if a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. See OLADAPO V. STATE (2020) LPELR-50553(SC) AT 7-8(D-C).

In law, proof beyond reasonable doubt is not prove beyond all shadows of doubt. See BAKARE V. STATE (1987) LPELR-714(SC) AT 1011 (D-D), (1987) 1 NWLR (PT.52) 579 where the Supreme Court Per OPUTA, J.S.C stated thus: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged.

Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:-“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course, it is possible but not in the least probable’ the case is proved beyond reasonable doubt” See also THOMAS V. STATE (2017) LPELR- 41735(SC) AT 26-27, (2015) 9 NWLR (PT. 1570) 230.

The complaint of the appellant on the failure to call Elvis Alfred, PW1’s friend who was kidnapped along with him, Henry Anyadike and the officers of the Nigeria Army is a non-starter. First, the appellant was not charged for the kidnapping of Elvis Alfred, the other victim of the kidnapping. Secondly, the law is settled that an accused can be convicted on the evidence of one witness provided the evidence is legally admissible, cogent and credible and sufficiently established all the elements of the offence charged.

In the instant case, the most important witness is the person who is the subject of the charge and that is PW1. The prosecution did not need to parade an array of witnesses to prove its case against the appellant. The appellant’s counsel made heavy weather of the fact the Court discharged and acquitted the appellant in respect of count 3 and argued that the appellant ought to have been discharged in respect of counts 1 and 2. The offence of demanding with menaces is separate and distinct from the offences of conspiracy to kidnap and kidnapping.

The offence of kidnapping is complete when the victim is carried away against his wish. See EWUGBA V. STATE (2017) LPELR- 43833(SC) AT 30 (B). Therefore, the offence of kidnapping started when PW1 was thrown into the booth of the car and was completed the moment he was blindfolded and dragged into the bush by his captors and the appellant. It is the demand for ransom, torturing of the appellant and threatening to kill him if ransom is not paid that constitutes the offence of demanding with menace. That occurred after the offence of kidnapping had been committed.

The contention of the appellant’s counsel that the same evidence that formed the basis of the acquittal of the appellant of the charge of demanding with menaces was used to convict the appellant for kidnapping is misconceived and totally incorrect.

The submissions and argument of the appellant’s counsel about who reported the kidnapping to the police and suggestions that it was Shedrack Ayadike not lldeige Shedrack that was kidnapped or that no one was in fact kidnapped are fanciful imaginations of the appellant’s counsel in the face of the cogent, credible and compelling evidence of PW1 and the free, voluntary and unequivocal confession of the appellant as to his role in the kidnapping.

Section 516 of the Criminal Code Law of Delta State under which the appellant was charged for the offences of conspiracy to kidnap provides that: “Any person who conspire with another to commit any felony, or to do any act in any part of the world which if done in Nigeria would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.” ​On the offence of conspiracy to kidnap, the lower Court held as follows at page 112 of the record: “To prove conspiracy, there must be a meeting of two or more minds to carry out an unlawful purpose in an unlawful manner.

However, in order to prove conspiracy, it is not necessary that the accused persons should have concocted the scheme or the subject of the charge, it can be inferred from the act of the parties. See IBORI vs. STATE (2016) 9 NWLR (PT. 1571) 216 AT PARAS B-D and ATANO vs. ATTORNEY GENERAL, BENDEL STATE (1988) 2 NWLR (PT. 75) 2011. A meeting of the minds of the accused persons and their gang is easily inferred from the evidence on record. The offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof.

It is invariably an offence that is inferentially deduced from the acts of the parties which are focused toward the realization of their common mutual criminal purpose. See ODUNEYE vs. STATE (2001) 2 NWLR (PT.697) 311.

The prosecution has equally established the essential elements of the offence of conspiracy to commit kidnapping beyond reasonable doubt.” ​The settled principle of law regarding proof of conspiracy to commit a crime is that the involvement of an accused in the commission of the offence charged can be inferred from the evidence of his actions and inactions and circumstances of the case. See SHODIYA V. STATE (2013) LPELR- 20717(SC) AT 19(A), (2013) 14 NWLR (PT. 1373) 147. OKIEMUTE V. STATE (2016) LPELR-40639(SC) AT 37-38((G-C), (2016) 15 NWLR (PT. 1535)297. BOUWOR V.

STATE (2017) LPELR-26054(SC) AT 17 (D), (2016) 4 NWLR (PT. 1502) 295. In the instant case, the entire evidence on record clearly established the fact that there was a common intention between the appellant, his co-convict, the person referred to as JK and other members of the kidnapping gang to carry out kidnapping and the appellant was assigned a specific role to guard the kidnapped persons in the bush which he did in the instant case. The lower Court rightly found the appellant guilty of conspiracy to commit kidnapping.

Issue 2 is resolved against the appellant. ​The result is that the appeal is partly allowed. The appeal in respect of the conviction of the appellant for armed robbery is allowed. The part of the judgment where the appellant was found guilty of armed robbery and the sentence of death passed on him are hereby set aside. The part of the judgment where the appellant was found guilty of conspiracy to kidnap and kidnapping is hereby affirmed. The sentences passed on him for those offences are hereby affirmed.

JOSEPH EYO EKANEM, J.C.A.: I read in advance, the leading judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with the reasoning therein which I adopt as mine in allowing the appeal in part. I abide by the consequential orders made in the leading judgment. ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have read in advance, the judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same.

I abide by all consequential order(s) in the lead judgment.

Judgment

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The Respondent arraigned the Appellant and another for armed robbery and conspiracy. Trial went on and at the end, the trial Court found that the Respondent proved its case. This appeal is against the decision of the High Court of Ogun State sitting in Abeokuta and delivered by HON. JUSTICE P. F.

ODUNIYI on the 20th May, 2020 in Suit No.: AB/21R/2017 wherein the lower Court found the Appellant guilty and convicted the Appellant and the 2nd Accused person on counts (i), (ii) and (iii) of the information sheet and sentenced him to death by hanging under Section 6(b) of the Armed Robbery and Firearms (Special Prohibition) Act. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated on 7th August, 2020 setting out 16 grounds of appeal. Facts leading to this appeal are straightforward and amenable to brief summary.

The Appellant along one Abdullahi Ogundijo (2nd Accused) were arraigned on the 26th October, 2017 on a five count charge of conspiracy and armed robbery contrary to Section 6 (b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 11, Laws of the Federation of Nigeria, 2004. ​

The Information reads: 1. MONSURU MUKAILA (M) 2. ABDULLAHI OGUNDIJO (M) Are charged with the following offences: STATEMENT OF OFFENCE – 1ST COUNT Conspiracy to commit Armed Robbery, contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004. PARTICULARS OF OFFENCE MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division conspired to commit Armed Robbery.

STATEMENT OF OFFENCE – 2ND COUNT Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004. PARTICULARS OF OFFENCE MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed a site belonging to one Mrs.

Elizabeth Popoola of 4 (20kg) binding wire valued at Two Million, Two Hundred and thirty-four Thousand Naira (N2,234,000.00) iron rods, three mobile phones and the sum of forty-five thousand Naira (N45,000.00) STATEMENT OF OFFENCE – 3RD COUNT Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Bala Musa (M) of the sum of Fifteen Thousand Naira (N15,000.00) and a mobile phone. STATEMENT OF OFFENCE – 4TH COUNT Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Emmanuel Ilya (M) of the sum of Fifteen Thousand Naira (N15,000.00) and a mobile phone. STATEMENT OF OFFENCE – 5TH COUNT Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE MONSURU MUKAILA (M) and ABDULLAHI OGUNDIJO (M) and others now at large on or about 25th day of January, 2017 at Pentagon Estate, Kajola Village in the Abeokuta Judicial Division while armed with gun robbed Rabiu Ibrahim (M) of his mobile phone valued at Seven Thousand Naira (N7,000.00). The Appellant testified for himself while the Respondent called 4 witnesses and tendered Exhibits A, B, C, D-D6, E, F, G, H, J, K1, K2 and L. After due consideration, the trial Court convicted and sentenced the Appellant to death by hanging.

The Appellant aggrieved with the said judgment brought the instant appeal. Pursuant to the rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the Appeal. The Appellant’s brief settled by OLATUNDE OLADELE, ESQ., is dated 5th day of February, 2021 filed on the same day. The Appellant distilled 5 issues for determination as follows: 1. Whether or not the Appellant committed the offence of Armed Robbery (Distilled from grounds 1, 3, 4, 5 and 14) 2.

Whether or not the testimony of the Respondent’s witnesses are contradictory and unreliable to lead to the conviction of the Appellant (Distilled from grounds 6, 10 and 13 grounds). 3. Whether the learned trial Judge ought to have relied on the confessional statements of the Appellant in convicting the Appellant. (Distilled from grounds 7, 8 and 9) 4. Whether or not the Respondent has satisfactory discharged the burden of proving the guilt of Appellant. 5.

Whether or not the learned trial Judge ought to have convicted the Appellant for the offence of armed robbery and sentenced him to death by hanging pursuant to Section 2(a) and Section 6(b) of the Robbery and Firearms (Special Provision) Act. (Distilled from grounds 16) The Respondent’s brief settled by BABAJIMI AYORINDE, ESQ., is dated 27th day of October, 2021 filed on the same day but deemed on the 15 March, 2022. The Respondent formulated 5 issue of determination as follows: 1. Were there any contradictions in the evidence of the prosecution witness. 2.

Was an identification parade necessary in the circumstances of this case. 3. Was Exhibit K2 the basis of the lower Court’s conviction of the Appellant 4. Was the failure to call Saheed Ishola fatal to the prosecution’s case. 5. Did the prosecution prove the guilt of the Appellant beyond reasonable doubt. Thereafter the Appellant filed a reply brief dated 14th day of March, 2022 but deemed on the 15th March, 2022.

APPELLANT’S SUBMISSION ISSUE ONE The Appellant argued that the Respondent failed to prove beyond reasonable doubt the ingredients of the offence of armed robbery by not proving sufficiently that the Appellant was armed when he entered the premises at Kajola. The Appellant went on to define the offence of armed robbery as held in UGWU V. STATE (2020) 7 NWLR (PT. 1723) 259, OLAYINKA V.

STATE (2007) 9 NWLR (PT. 1040) 561 and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap 389 Laws of the Federation of Nigeria, 1990 and submits that even though the testimony of PW1 was an eye witness account of the incident it was fraught with discrepancies, inconsistencies and contradictions, one of which is failure of PW1 to give vivid details of how he was able to specially identify the Appellant from the gang of armed robbers that attacked him. The Appellant relied on OCHIBA V. STATE (2011) 17 NWLR (PT. 1277) 663 and BOTU V. STATE (2018) 3 NWLR (PT. 1607) 410.

Continuing, the Appellant submits that his identity was in issue and the evidence of PW1 on the Appellant’s identity is weak because by the circumstance of the attack it was impossible for PW1 to recognize the persons that attacked him. The Appellant further argue that the Respondent ought to have conducted an identification parade to ascertain the identity of the Appellant as failure to lead evidence of identification parade is fatal. The Appellant also relied on STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397, AFOLALU V. STATE (2010) 16 NWLR (PT. 1220) 584 and AJILORE V.

STATE (1993) 4 NWLR (PT. 289) 572. Furthermore, the Appellant submits that the Respondent failed to link the Appellant with the crime by failing to carry out an identification parade, therefore, the judgment of the trial Court is perverse and should be set aside by the Court. The Appellant urged the Court to resolve this issue in his favour.

ISSUE TWO Arguing this issue, the Appellant reproduced the evidence of PW1, PW2, PW3 and PW4 (See page 39 and 101 of the record of appeal) to show the contradictions contained therein and submits that the existence and use of dangerous weapon is fundamental to an offence of armed robbery but was not proved by the Respondent. The Appellant cited USUFU V. STATE (2007) 3 NWLR (PT. 1020) 94.

Continuing, the Appellant submits that the Respondent failed and refused to establish that the weapons tendered as Exhibits F, G, and H were used in the commission of the offence charged and was used by the Appellant. The Appellant relied on STATE V. IBRAHIM (2019) 9 NWLR (PT. 1676) 137. According to the Appellant, it was Saheed Ishola that engaged his services to transport goods from Mowe to the Ojodu for the sum of N35,000.00, thereafter, he moved to crime scene on the instruction of Saheed Ishola to carry the iron rods unfortunately, he was arrested. The Appellant placed reliance on AMEH V.

STATE (2018) ALL FWLR (PT. 1632) 99, ANI V. STATE (2009) 16 NWLR (PT. 1168) 443 and AZEEZ V. STATE (2005) 8 NWLR (PT. 927) 312 to submit that it is the duty of the prosecution to call material witnesses and Saheed Ishola is a material witness because his evidence will resolve the issue of whether or not it was him who engaged the services of the Appellant to carry iron rods from Kajola to Ojodu Berger, therefore failure to call Saheed Ishola and the Police officer that arrested the Appellant amount to withholding of evidence as provided in Section 167 of the Evidence At, 2011.

The Appellant further submits that though his act seems as if he is guilty, there was no criminal intention. The Appellant referred the Court to IBRAHIM V. STATE (1993) 2 NWLR (PT. 278) 735, IMHANRIA V. NIGERIAN ARMY (2007) 14 NWLR (PT. 1053) 76, ADEKUNLE V. STATE (2002) 4 NWLR (PT. 756) 169, EJIDE V. STATE (2019) 14 NWLR (PT. 1692) 246, SALE V. STATE (2016) 3 NWLR (PT. 1499) 393 and ABEKE V. STATE (2007) 9 NWLR (PT. 1040) 411. Furthermore, the Appellant relying on JIMMY V.

STATE (2013) 18 NWLR (PT. 1386) 229 submitted that the trial Judge was in error to have held at page 31 of the judgment that the contradictions in the case of the Respondent are mere discrepancies and urged the Court to resolve this issue in favour of the Appellant. ISSUE THREE In arguing issue three, the Appellant restated the ways that an accused person may retract a confessional statement as held in NWOKEARU V. STATE (2010) 15 NWLR (PT. 115) 1 and OSENI V.

STATE (2012) 5 NWLR (PT. 1293) 351 and submits that he did not make the confession in Exhibit K1 and K2 as they are credited to him by the Respondent. The Appellant argued that where there is conflict in the evidence of the Respondent’s case, the Court will take and believe the version that is favourable to the accused as held in OSHODIN V. STATE (2001) 12 NWLR (PT. 726) 217, therefore, the trial Court ought to rely on Exhibit C which is favourable to the Appellant and discountenance Exhibits K1 and K2. The Appellant restated the principle of inconsistency rule as held in OKEKE V.

STATE (1994) 4 NWLR (PT. 392) 676, EGBOGHONOME V. STATE (1993) 7 NWLR (PT. 306) 383, AKPAN V. STATE (2000) 12 NWLR (PT. 682) 607 and KAREEM V. F.R.N (2002) 8 NWLR (PT. 770) 664 and argued that the inconsistency in the statement of the Appellant (Exhibit C) cannot be compared to the contradictions in Exhibits K1 and K2, therefore, Exhibits K1 and K2 should be treated as retracted confessional statements.

Further on this issue, the Appellant submits that Exhibits K1 and K2 are contrary to Section 19(3) of the ACJL, Ogun State, 2017 and this was confirmed by the evidence of PW4 during cross-examination, therefore the trial Judge erred in law when he relied on the Appellant’s extra Judicial Statements which are manifestly unreliable and inadmissible. The Appellant relied on NNAJIOFOR V. STATE (2019) 2 NWLR (PT. 1655) 157 and OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561. The Appellant urge the Court to review the judgment of the lower Court and resolve this issue in favour of the Appellant.

ISSUE FOUR The Appellant submits that in criminal proceedings, the onus is on the Respondent to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary ingredients of the charge are proved by evidence. The Appellant relied on YONGO V. C.O.P (1992) 8 NWLR (PT. 257) 36, Section 135 and 139 of the Evidence Act, 2011.

Continuing, the Appellant submits that the Respondent failed to establish by credible evidence that there was an agreement between the Appellant and the 2nd accused person to commit crime because aside the confessional statement of the Appellant and the 2nd accused person (Exhibits K1, K2 and L), there is no viable evidence that supports the fact that there was any conspiracy between the Appellant and 2nd accused person to commit any crime, therefore the essential ingredients of the offence of conspiracy which lies in bare agreement was not proved by the Respondent. The Appellant cited STATE V.

GBAHABO (2019) 14 NWLR (PT. 1693) 522, IKWUNNE V. STATE (2000) 5 NWLR (PT. 658) 550, OFORLETE V. STATE (2000) 12 NWLR (PT. 681) 415 and CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686. The Appellant relied on AFOLAHAN V.

STATE (2018) 8 NWLR (PT. 1621) 223 to urge the Court to find that the Respondent failed to discharge the burden of proof that the Appellant committed the offence of armed robbery and the failure of the trial Judge to consider and examine a defence raised by the Appellant does not only raise reasonable doubt in the case of the Respondent but also amount to failure to perform a vital duty imposed on the trial Judge which will amount to a miscarriage of justice.

The Appellant also urged the Court to resolve this issue in favour of the Appellant and to hold that the Respondent failed to prove their case beyond reasonable doubt at the trial Court. ISSUE FIVE According to the Appellant, in criminal proceedings, the Respondent must establish its case against the accused person beyond reasonable doubt and where there is any doubt in the case of the Respondent such doubt must be resolved in favour of the accused person as held in STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 439, CHUKWU V. STATE (1996) 7 NWLR (PT. 463) 686, IDEMUDIA V.

STATE (2015) 17 NWLR (PT. 1488) 375 SALE V. STATE (2016) 3 NWLR (PT. 1499) 392 and BOTU V. STATE (2018) 3 NWLR (PT. 1607) 410. Continuing, the Appellant argued that the prosecution failed to discharge the burden of proof of the guilt of the Appellant and the 2nd accused person beyond reasonable doubt and the conviction of the accused person ought to be set aside by the Appellate Court. The Appellant submits that the case of the Respondent is without merit and should be dismissed; and the Appellant should be discharged and acquitted by the Court.

RESPONDENT’S SUBMISSION ISSUE ONE According to the Respondent, PW1 testified that dangerous weapons were recovered by the police officer when the Appellant was arrested but PW3 said that no ammunition was brought to the police station. The Respondent submits that this cannot be categorized as contradictions because there is a whole difference between weapons and ammunition and in the light of SOMEFUN V.

STATE (2021) LPELR-54415 (CA) there was no contradiction between the evidence of PW1, PW3 and PW4 as it relates to the recovery of weapons from the Appellant and even if there are contradictions they are not so material to lead to the acquittal of the Appellant. The Respondent relied on WOWEM V. STATE (2021) LPELR-53384 (SC).

Continuing, the Respondent argued that the policemen that rescued PW1 and collected the weapons from the Appellant were the policemen stationed near the scene of the crime (in Kajola), PW3 was the policeman on duty at Mowe police station when the robbery incident was reported by PW2 nine hours after it had occurred while PW4 was the police officer on duty at the State CID Eleweeran on 28/1/17 when the case was transferred from Mowe Police station.

It was the submission of the Respondent that the fact that a gun was not tendered in evidence does not mean that one was not used to commit crime and the Appellant with his cohort were armed with a cutlass, machete and hammer tendered as Exhibits F, G and H which are offensive weapons as held in GIKI V. STATE (2018) LPELR-43604 (SC) and IGHELE V. STATE (2018) LPELR-43929 (CA). The Respondent urge the Court to resolve this issue in favour of the Respondent by holding that there was no contradiction in the evidence given by the prosecution.

ISSUE TWO The Respondent submitted that it is not in all instances that an identification parade must be carried out to ascertain the identity of an accused because where the accused was arrested at the crime scene and the confessional statement that admits the commission of crime along the testimony of the eye witness, it has become unnecessary to conduct identification parade as held in AMAECHI NJOKU V. THE STATE (2021) LPELR-53076 (SC) and OSARO NOMAYO V. THE STATE (2018) LPELR-44729 (SC).

Therefore, based on the evidence of PW1, the confessional statement of the Appellant and the fact that the Appellant was arrested at the crime scene, the issue of identification parade was rightly dispensed with by the trial Court. The Respondent urged the Court to resolve this issue against the Appellant.

ISSUE THREE In arguing this issue, the Respondent submits that the trial Court relied on PW1’s evidence because it was unshaken under cross-examination and the extrajudicial statement (Exhibit K2) made by the Appellant and his oral testimony were not reliable as the Appellant gave different accounts, therefore, the trial Court could not have relied on it to discharge the Appellant.

The Respondent submits that the Appellant’s issue 3 and grounds 7, 8 and 9 of the notice of appeal are incompetent and should be discountenanced because the position of the law is that a ground of appeal or issue is incompetent if it does not arise from the judgment being appealed against as held in OHAJUNWA V. OBELLE (2008) 3 NWLR (PT. 1073) 52.

Continuing, the Respondent submits that at the time Exhibits K1 and K2 were sought to be tendered by the Respondent through PW4, the Appellant did not object to their admissibility as seen from the records of Appeal at pages 105, thus, it is too late for the Appellant to challenge the admissibility or voluntariness of the confessional statement at this point. The Respondent cited UWEH V. STATE (2012) LPELR-19996 (CA).

It was the argument of the Respondent that the provision of Section 19(3) of the ACJL is unconstitutional, null and void on the grounds that the issue of admissibility of evidence is covered under item 23 of the Exclusive Legislative list in the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 and only the National Assembly can legislate on the items in the Exclusive Legislative List, therefore, the admissibility or otherwise of Exhibit K2 is an issue of evidence and the ACJL, being a law enacted by the House of Assembly of Ogun State cannot determine the admissibility of Exhibit K2.

The Respondent relied on ADIO V. FEDERAL REPUBLIC Of NIGERIA (2021) LPELR-54517 (CA) and OYENIYI V. STATE OF LAGOS (2019) LPELR-46525 (CA) to urge the Court to resolve issue three in favour of the Respondent.

ISSUE FOUR It was the argument of the Respondent that it successfully proved the guilty act and mind of the Appellant by proving that the Appellant was arrested at the crime scene and also that he participated in the criminal act, therefore, the evidence of the Appellant that he was engaged by Saheed Ishola is immaterial because it is clear that the Appellant and his cohorts used violence and offensive weapons on PW1 in order to steal the iron rods.

Continuing, the Respondent submits that failure to call Saheed Ishola was not fatal to the case of the Respondent on the grounds that the prosecution has proved that the Appellant committed the crime and Saheed Ishola is not a material witness. According to the Respondent, the material witnesses were before the Court and by their evidence the case of the Respondent was established, therefore, there was no need to call a host of witnesses as held in FAFURU V. STATE (2016) LPELR-41410 (CA) and OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561.

Furthermore, the Respondent urged the Court to discountenance the Appellant’s argument on this point and to resolve this issue in favour of the Respondent. ISSUE FIVE The Respondent submits that the case of ABELEGAH V. STATE (2015) LPELR-24793 (CA) stated the methods of proving the commission of a crime and that the Respondent has satisfied it through the eye witness account of PW1, further strengthened by the arrest of the Appellant at the crime scene and the confessional statement of the Appellant where he admitted commission of crime, the Respondent relied on ADELEKE & ANOR V.

STATE (2011) LPELR-3606(CA) to further argue that the Respondent has proved armed robbery and that the Appellant was one of those who carried out the armed robbery and weapons recovered from the crime scene were tendered in Court. Therefore, the Respondent has indeed discharged the burden of proving the Appellant’s guilt through credible evidence.

It was the argument of the Respondent that from the evidence of PW1, it is clear that the Appellant formed a common intention with the 2nd accused and other members of his cohort to commit the armed robbery and it is trite that the agreement between two or more persons to commit an unlawful act may either be express or implied as held in SMART V. STATE (2016) LPELR-40728 (SC).

Furthermore, the Respondent urged the Court to discountenance the Appellant’s argument, affirm the decision of the trial Court and resolve this issue in favour of the Respondent. ​ APPELLANT’S REPLY BRIEF The Appellant in response to the Respondent’s brief submits that PW4 who recovered Exhibits F, G, H and J from the scene of the crime on the 3rd February, 2017 did that done about 10 days after the crime was reported at Ibafo Police Station, this contradicts the evidence of PW3 and the failure of the Respondent to resolve the inconsistencies in the testimonies of Respondent’s PW3 and PW4 as to whether the dangerous weapons Exhibit F, G, H, and J were recovered from the scene of crime and it should be resolved against the Respondent.

The Appellant relied on BASSEY V. STATE (2012) 12 NWLR (PT.1314)209. Continuing, the Appellant argued that a party cannot introduce facts which were not led in evidence in Court and the Courts of law are never interested in assumptions in determining criminal responsibility as they are not the facts of the case, therefore the Respondent’s submission in paragraph 13 of its brief is a legal assumption and cannot be allowed in law as held in OKONKWO V. STATE (1998) 8 NWLR (PT. 561) 210 and NNEJI V. CHUKWU (1996) 10 NWLR (PT. 478) 265.

It was the submission of the Appellant that the trial Judge did not evaluate the evidence properly, especially as it relates to proof of the fact of whether the Appellant and the 2nd accused were part of the persons that carried out the acts of the alleged robbery and the evidence at the trial Court is that though he was present at the scene of the crime, he was there to render paid service to Saheed Ishola, who was never called as a witness by the Respondent at the trial Court. The Appellant relied on FATAI V. STATE (2013) 10 NWLR (PT. 1361) 1, ATIKU V.

STATE (2010) 9 NWLR (PT. 1199) 241, STATE V. YANGA (2021) 5 NWLR (PT. 1769) 375, AYINDE V. STATE (2018) 17 NWLR (PT. 1647) and OKOIZEIBU V. STATE (2003) 11 NWLR (PT. 831) 327 to support his submission. Continuing, the Appellant contends that the identity of the Appellant was in issue and what the trial Judge ought to have done is to order for identification parade because the purpose of an identification parade is to search for the true identity of the person that committed the crime as held in NWABUEZE V. STATE (1988) 4 NWLR (PT. 85) 16, OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360, ORJI V.

STATE (2008) 10 NWLR (PT. 1094) 31, AKPAN V. STATE (1992) 6 NWLR (PT. 248) 439, GODWIN IKPASA V. BENDEL STATE 1981 9 S.C., CHAN WEI KEUG V. QUEEN (1967) 2 AC 160, NWOCHA V. STATE (2012) 9 NWLR (PT. 1306) 571 and BARMO V. STATE (2000) 1 NWLR (PT. 641) 424.

Furthermore, the Appellant submits that Section 19(3) of the ACJL are procedural rules for the benefit of a suspect and therefore must be construed as being imperative and the procedural sections are usually mandatory and are often inserted for the benefit of the accused persons, therefore, failure to comply with the provision of Section 19(3) of the ACJL is fatal and it rendered the admissibility of Exhibit L a nullity as held in CHARLES V. FRN (2018) 13 NWLR (PT. 1635) 50, NNAJIOFOR V. FRN (2019) 2 NWLR (PT. 1655) 157, OKEGBU V. STATE (1979) 11 SC 1, KABIRU V. A. G.

OGUN STATE (2008) LPELR-3617 (CA), DAWA V. THE STATE (1980) 8-11 SC 236, EMMANUEL V. FRN (2018) LPELR-50844 (CA); STATE V. AZEEZ (2008) 14 NWLR (PT. 1108) 439; OCHIBA V. STATE (2011) 17 NWLR (PT. 1277) 663 and AZUBUIKE V. STATE (2021) 11 NWLR (PT. 1786) 47. Continuing, the Appellant submitted that to establish acts of conspiracy against the Appellant, there is need to consider the testimony of Saheed Ishola, who is the person that engaged the services of the Appellant and 2nd accused to carry out transportation services for him and failure to call Saheed Ishola is fatal.

The Appellant relied on EGHAREVBA V. STATE (2007) 4 NWLR (PT. 26) 1, SMART V. STATE (2016) 9 NWLR (PT. 1518) 447 to support his argument and the conflicts, mix-up and contradiction in the prosecution’s case are fatal and substantial to warrant the setting aside of the judgment of the trial Judge. The Appellant referred the Court to NAMSOH V. STATE (1993) 5 NWLR (PT. 292) 129 and AZUBUIKE V. STATE (Supra) to urge the Court to allow the appeal of the Appellant set aside the judgment and discharge and acquit the Appellant.

RESOLUTION I have considered the Notice of Appeal, the Records of Appeal and the briefs of respective Counsel in this appeal. The Appellant who is the party aggrieved with the judgment of the trial Court, donated 5 issues for determination and they disclose all the areas he wants the Court to consider. Being the party aggrieved, the Court shall adopt the issues formulated by the Appellant for resolution in this appeal, however, they shall be resolved seamlessly for expediency and to avoid repetition because most of the issues revolve around evaluation of evidence.

In a criminal trial, the law is trite that the burden rests on the Respondent from beginning to the end of trial and the standard of proof is beyond reasonable doubt, see ABDULLAHI V. STATE (2008) LPELR-28 (SC) wherein the apex Court held thusly: ”It is settled law that in a criminal trial the onus remains with the prosecution to prove or establish the charge against the accused person(s) beyond reasonable doubt and that the onus or burden of proof never changes/shifts. See the case of Ahmed v. The State (2001) 12 S.C. (Pt.I) 135; (2003) 3 ACLR 145 at 177, Anekwe v.

The State (1998) ACLR 426 at 433, Obiakor v. The State (2002) 6 S.C. (Pt. II) 33; (2002) 6 SCNJ. 193.” Per ONNOGHEN, J.S.C. The Respondent has 3 ways to establish its case in proving the guilt of the Appellant and it can employ any of the methods or a combination of any two in proving its case. ​ It is also settled that every offence named in a written law has ingredients that must be established by cogent evidence before a conviction can stand, all ingredients must have evidence to support it, see RICHARD V.

STATE (2018) LPELR-45157 (SC) wherein the apex Court held thusly: “… in Iliyasu v State (2015) LPELR-24403 (SC) 25; B – G, this Court [per Nweze, JSC] held that: The constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been generously outlined in case law, Maigari v. State (2013) 6 – 7 MJSC (Pt. 11) 109, 125, citing Ochemaje v. The State (2008) SCNJ 143; Daniel v. The State (1991) 8 NWLR (Pt. 443) 715; Obudu v. State (1999) 6 NWLR (Pt. 1980) 433; Gira v.

State (1996) 4 NWLR (Pt.428) 1, 125.” Per NWEZE, J.S.C Also in HARUNA V. AG FEDERATION (2012) LPELR-782 (SC) the apex Court held thusly: “… It is indisputable that the prosecution must prove all ingredients of the offence against the appellant beyond reasonable doubt. Ubani v. State (2003) 18 NWLR pt.851 pg.24, Uguru v. State (2002) 9 NWLR pt.771 pg. 90. Igabele v. State (2006) 6 NWLR pt.975 pg.100, Adara v. State (2006) 9 NWLR pt.984 pg.155.” Per ADEKEYE, J.S.C.

The offences named in the charge are armed robbery and conspiracy contrary to Sections 6(b) and 1(2)(a) of the Robbery and Firearm (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria, 2004.

The Respondent called four witnesses in proof of its case while the Appellant testified in defence. The first issue touches on whether the offence of armed robbery was committed and proved.

Armed robbery is defined by the apex Court thusly: “…In effect, armed robbery simply means stealing plus violence, used or threatened.” See EKE V. STATE (2011) LPELR-1133(SC), ARUNA V. THE STATE (1994) 6 NWLR (PT. 155) 125 and AMINU TANKO V. THE STATE (2009) 1- 2 SC (PT. 1) 198 AT 223. Also in STATE V. ISIAKA (2013) LPELR-20521 (SC) wherein the apex Court also held thusly: “What is Armed Robbery?” “Armed Robbery” for our purpose here will only be looked at from the stand point of the Robbery and Firearms (Special Provisions) Act Cap. R 11, Laws of the Federation of Nigeria, 2004.

The simplest breakdown of Armed Robbery is to rob with arms. What then is “Robbery” and what constitutes “arms” The word “Robbery” under the Act means, “stealing anything and at or immediately before or after the time of stealing it using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” The word “steal” is encapsulated in the definition of the word “Robbery” under the Act.

The Act goes on to define the word “steal” as – “To take or convert to one’s use or to the use of any other person, anything other than immovable property with any of the following intents: a) an intent permanently to deprive the owner of the thing of it. b) an intent permanently to deprive any person who has any special property in the thing of such property, the term “special property” here including any charge or lien upon the thing in question and right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit. c) an intent to use the thing as a pledge or security. d) an intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform. e) an intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion. f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.” As regards the word “Arms” there is a clear subdivision of that term under the Act into “firearms” and “other offensive weapons.” “Firearms” include the following – cannon, gun, rifle, carbine, machine gun, cap gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearms whether whole or detached pieces.” “Other offensive weapons” under the Act are made to refer to “any article (apart from a firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal glass or stone capable of being used as an offensive weapon.” Per ALAGOA, J.S.C.

The offence of armed robbery requires the Respondent to prove the following ingredients: a. That there was a robbery;

b. That the robbers were armed with offensive weapons as at the time of the robbery; and

c. That the accused person participated in the robbery. ​ The fact of a robbery was not contested in the face of overwhelming evidence that a robbery occurred and victims testified to that effect. The ingredients that are contested are the second and third ingredients of the offence. In proving that the robbers were armed, the Respondent relied on the evidence of PW1 who gave a vivid account of how the robbery took place and said a hammer was used to break down his door, they used a cutlass and axe to beat him and he sustained injuries on his hand.

He also told the Court that the Appellant threatened him with a gun. That the Appellant tied him up and inflicted him with machete cut injuries on his hand. The Court accepted and believed this piece of evidence which the lower Court found was corroborated by Exhibit D5. The said PW1 was then robbed after all the threats and injuries. Furthermore, Exhibits F, G, H, and J though contested are dangerous weapons allegedly recovered at the scene of crime days after the occurrence of the incidence. The apex Court described offensive weapon in the case of NWACHUKWU V.

STATE (1986) LPELR-2085 (SC) and STATE V. FADEZI (2018) LPELR-44731 (SC) wherein the apex Court held thusly: “Offensive weapon means any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger or any piece of wood, metal glass or stone capable of being used as an offensive weapon. See Section 15 of Robbery and Firearms (Special Provisions) Act.” Per SANUSI, J.S.C.

The items clearly named by PW1 all fall within the category of what an offensive weapon is. The trial Court believed the evidence of the said witness. Now, assuming the offensive weapons identified by the prosecution witnesses were not recovered and tendered, would the count fail because of that? The apex Court in SIMON V. STATE (2017) LPELR-41988 (SC) held thusly: “On the failure of the prosecution to tender the weapon used in the armed robbery.

The Court of Appeal said: “The prosecution need not tender the weapons of the offence of robbery.” Relying on the decision of this Court in Olayinka v.

State ​(2008) 6 ACLR P. 194, this Court said: “With respect to the submission of the appellant about the failure of prosecution to tender the weapons of the alleged robbery and its effect on the prosecution, I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person.” I earlier on alluded to what is required of the prosecution to establish the guilt of an accused person in a charge of armed robbery. Nowhere in the law is it stated that the prosecution should tender weapons used in the robbery.

Weapons used in armed robberies are usually easily disposable items as in this case, clubs, stick, cutlasses. The circumstances of robberies do not require the tendering of weapons used by the robbers, all that is required is that the robber was armed when he robbed the victim. The prosecution does not need to tender the weapons used in an armed robbery.” Per RHODES-VIVOUR, J.S.C. ​ Therefore, the arguments put forward concerning Exhibits F, G, H and J contending that they were recovered days after the incident is misconceived and untenable.

In this case, PW1 a victim gave a clear description of the offensive weapons the robbers who came to attack used in the robbery incident. His evidence was not challenged nor contradicted on that point. It is also settled that the Court can convict on the evidence of a single witness who is believed by the Court. See OGU V. COP (2017) LPELR-43832 (SC) wherein the apex Court held thus: “His Lordship noted that the law is settled that a Court can convict on the evidence of a single credible witness.

What these observations reveal is that the Court found the evidence of PW3, who was not only an eye witness to the crime but also a victim, to be credible. The learned trial Judge correctly stated the position of the law. The evidence of a single witness, if found to be cogent and credible is sufficient, without more, to secure the conviction of a person accused of committing a crime, except where the evidence is such that requires corroboration by law.

See Oguonzee Vs The State (1998) 5 NWLR (Pt.551) 521, Effiong Vs The State (1998) 8 NWLR (Pt.562) 362, Babarinde Vs The State (2014) 3 NWLR (Pt.1395) 568, Akpabio Vs The State (1994) 7 NWLR (Pt.359) 635.” Per KEKERE-EKUN, J.S.C. The unchallenged evidence therefore stands and I also find that there was armed robbery. The next element is whether the Appellant was amongst those who came to rob that day.

PW1 was the one who clearly identified the Appellant and his co-accused, the trial Court believed the evidence and relied on it as supported by the confessional statements of the Appellant which were admitted without any objection as Exhibits K1 and K2 and therein the Appellant admitted being part of the robbery gang that operated that day. The trial Court relied upon it to find that the Appellant was part of the gang that operated that day. The Appellant’s Counsel raised a number of issues with the identity of the Appellant.

One point that must be made at the onset is that the Appellant was arrested at the scene of crime. He explained it by saying that he was engaged to convey rods for one Saheed Ishola and that cannot raise a defence of alibi. ​ Firstly, the Appellant contended that an identification parade should have been conducted before arriving at the conclusion that the Appellant was amongst those who operated that day. Identification is simply a set of facts and circumstances for which a witness associate an accused person with the commission of the crime.

What is an identification parade in criminal jurisprudence? In ALUFOHAI V. STATE (2015) 7 NWLR (PT. 1445) P.72 at 191, the apex Court defined an identification parade as generally, identification parade, otherwise known as “line-up” is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See also AGBOOLA V. STATE (2013) 11 NWLR (PT. 1366) 619.

An identification parade is the evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. See BABALOLA V STATE (2021) LPELR-53997 (CA). Identification parade becomes necessary under particular circumstances and is not for all times. See SANUSI V. STATE (2019) LPELR-48193 (CA) where the Court on when identification parade becomes necessary, held thusly: “The Supreme Court while shedding light on when an identification parade becomes necessary held in the case of WISDOM VS.

THE STATE (2017) 7 NWLR (PT. 1586) 446 AT 468 PARAS B – F as follows: “In AKEEM AGBOOLA VS. THE STATE (2013) 11 NWLR (PT. 1366) 619; (2013) 85 SCM 157 (2013) ALL FWLR (PT. 714) 139. In this Court, I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time where the victim might not have the opportunity of observing the features of the accused.

An identification parade would become necessary only in the following situations of visual identification; i) Where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence; ii) Where the victim was confronted by the offender for a very short time; and; iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See R V TURNBULL (1976) 3 ALL ER 549 (1977) QB 224 AT 228; IKEMSON & ORS. VS. THE STATE (1989) 1 CLRN 1 (1989) 3 NWLR (PT. 110) 455″.

It follows therefore that the guiding principle for the conduct of an identification parade envisage circumstances where the accused is not known to the Complainant before the alleged commission of a crime and/or where it is impossible for him to recognize the accused after the commission of the crime due to the circumstances in which the crime was committed. An identification parade becomes necessary when there is real dispute about the identity of the accused person. In NDUKWE VS.

THE STATE (2009) LPELR 1979 (SC), the Supreme Court held thus: “In summary, an identification parade is limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged.” Per OJO, J.C.A An identification parade therefore becomes necessary only when there is real dispute about the identity of the accused person.

The argument of the Appellant is that PW1 did not see the Appellant at close range and therefore there was a doubt as to the identification of the Appellant. However, the evidence of PW1 is clear and direct as to the role played by the Appellant. The Appellant came close enough to threaten PW1 with a gun, the same Appellant tied up PW1 and used a cutlass to hit PW1 and inflicted machete wounds on PW1. Time taken to conduct all these actions cannot be a fleeting moment that can said that PW1 couldn’t have identified the Appellant.

The evidence of PW1 on the identity of the Appellant was not challenged and the trial Court believed the said witness. Therefore, there was no doubt as to the identity of the Appellant and if any, it was created by the Appellant himself and being a self-created doubt, which has nothing to do with the Court, it cannot be a real doubt that the law would require the Court to resolve in favour of the Appellant.

The witness, PW1 came very close to the Appellant to identify him and there is no doubt as to the identity of the Appellant so as to warrant conducting an identification parade as contended by the Appellant’s Counsel. The next point in issue raised by the Appellant as issue three is the efficacy of the confessional statements. The confessional statements were relied upon by the trial Judge to find the Appellant guilty of the offence of robbery. In reassessing whether the Court was right in convicting the Appellant, this piece of evidence must also be considered.

The confessional statements admitted as Exhibits K1 and K2 were retracted by the Appellant when he said he did not make the statements. The confessional statements were admitted without objection. A retraction means to say that something you have said is not correct or the act of recanting or withdrawal. Where an accused retracts his confessional statement, the question as to whether he has made it, is a matter to be decided at the conclusion of the case by the trial Court. The mere denial will not be a reason for rejecting it.

The position of the law is that retraction does not affect admissibility, it only goes to weight and probative value to be attached to it by the Court at evaluation stage of the trial. See ALAO V. STATE (2019) LPELR-47856 (SC) wherein the apex Court held thusly: “… The retraction of a Confessional statement does not render confession inadmissible. The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it.

What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f.

The confession is consistent with the other facts ascertained and proved at the trial. See Osetola v State (2012) 17 NWLR (pt 1329) 251 at page 278, Dawa v State (1980) 8-11 SC 236.” Per OKORO, J.S.C The Court can convict on a retracted confessional statement if satisfied that the accused person made the statement. But it is desirable that before a conviction can be properly based on such a retracted confession there should be corroborative evidence. See SUNDAY V. STATE (2017) LPELR 42259 (SC) and IGBA V. STATE (2018) 6 NWLR (PT. 1614) 44.

The Appellant’s brief seem to argue against the two Exhibits from two angles, one is that he just did not make the statements and the second one is that it was made in disregard of the provisions of the Administration of Criminal Justice Law of Ogun State. I find the two approaches mutually exclusive. You cannot say, you did not make the statements and also say that the statements you made were contrary to the provisions of the Administration of Criminal Justice Law of Ogun State. You ordinarily have no business with the statement you allegedly did not make.

The Court shall look at the two angles in the interest of justice. The trial Judge considered the retracted statements and found that they are corroborated by the evidence of PW1 in all material particulars. He found that the Appellant admitted being at the scene of crime at about 1am and he was arrested at the scene, in addition, the truck the Appellant drove to the scene was also found there with the stolen rods and wires.

The requirement that the trial Court should look for corroborative evidence before relying on a retracted statement was satisfied and the findings of the trial Judge based on the retracted statements cannot be faulted. Now to the application of the Administration of Criminal Justice Law and the contention that the making of the said Exhibits K1 and K2 did not comply with the provisions of law.

The Appellant argued that Section 19(3) of the Law requires that a confessional statement must be made in the presence of a Legal Practitioner of the Appellant’s choice before it can be admitted in evidence, the Section says: “Where any person who is arrested with or without a warrant volunteers to make a Confessional Statement, the Police Officer shall ensure that the making and taking of such statement is recorded on a video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.” The Administration of Criminal Justice Law, 2017 of Ogun State is a Procedural Law and Evidence as a subject is a Federal item under the Exclusive legislative list, which means that only the National Assembly has the competence to legislate on the subject, Ogun State House of Assemble lacks the legislative competence to legislate on the subject of evidence. ​Furthermore, the procedure and protocol of how to handle confessional statements is provided for in the Evidence Act and if the provision of the Evidence Act is satisfied, the confessional statement must be admitted and it cannot be subject to the Administration of Criminal Justice Law of a State.

A State law cannot override the provisions of a substantive Federal Act. See ELABANJO & ANOR V. DAWODU (2006) LPELR-1106 (SC) wherein the apex Court held thus: “…Rules of Court cannot override statutory provisions of the law. See Alhaji Edun v. Odan Community, Ado Family etc (1980) 11 SC 103 at 124.” Per ONU, J.S.C. The two Exhibits were properly before the Court notwithstanding the provisions of Section 19(3) of the Administration of Criminal Justice Law of Ogun State, 2017. The judgment of NNAJIOFOR V STATE (2019) 2 NWLR (Pt. 1655) 157 is not applicable in this instance.

Having considered the oral testimonies of the Respondent, the retracted confessional statements of the Appellant which were tested and corroborated, the trial Judge was right to find that armed robbery was committed by the Appellant. Issue one and three are resolved against the Appellant. The Appellant under issue two contended that the evidence of Respondent’s witnesses were contradictory and therefore should not have attracted any value by the trial Court.

Contradiction is simply lack of agreement or harmony between facts related by two persons, however, it was defined by NWEZE, JSC in the case of UCHE V. STATE (2015) LPELR-24693 (SC) thus: “The word “contradiction”, traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite” see, Ikemson v.

State [1989] 3 NWLR (Pt. 110) 455, 479.” It is settled that any major conflict, contradiction or major mix up in the evidence in the case for the Respondent witnesses to have effect in the case, it must be substantial and fundamental as to affect the issue in contention before the Court. ​It is important to note that slight discrepancies and variation in the evidence of witnesses is not fatal.

Indeed, two human beings cannot give an account of an incident in the same way, we observe things and recall them differently, therefore, variations are allowed as long as they do not affect fundamental details touching on the issue in question. The Appellant in this case listed different aspects, one of which is that PW1 told the Court that offensive weapons used were picked from the scene of crime and taken to the Police Station while PW3 said no weapons were brought to the Station.

The case of the Respondent was not made on which weapons were brought to the Police Station, the case was that offensive weapons were used during the armed robbery and PW1 listed what he saw during the attack. The law is settled that failure to tender offensive weapon used during a robbery attack cannot be fatal if the ingredients of the offence are established. See SALEH V.

STATE (2018) LPELR-46337 (SC) on the same point, the apex Court held: “This Court has in a number of decided cases, held that the failure by the prosecutor to produce and tender in evidence the weapon used in the commission of an offence is not fatal, provided there is circumstantial evidence strong enough to point to the accused as the perpetrator of the crime. See Olayinka v State (2007) 9 NWLR (Pt.1040) 561, Victor v State 12013) 12 NWLR (Pt.1369) 465, State v Umaru (2014) LPELR 224 (SC). In the instant case, the appellant admitted that he used a stick to hit the deceased.

PW1 and PW2 confirmed that it was a stick that was used in hitting the deceased on the head. With these pieces of evidence, I am of the firm view that the failure to produce the stick by the prosecution is not fatal to its case.” Per GALUMJE, J.S.C. In any case, at page 2 of the Reply brief, learned Counsel for the Appellant urged the Court to resolve whether Exhibits F, G, H and J were recovered from the scene of crime. This therefore means that some of the weapons recovered at the scene were tendered. The fact that PW1 did not name the Policeman who recovered the items cannot be fatal.

The weapons could have been recovered by any policeman, any other person or even the victims of crime. The trial Court found support in the confessional statements of the Appellant where he named offensive weapons which supported what PW1 told the Court. The fact that evidence of PW1 on the weapons he named was not discredited, the trial Court cannot be faulted in the findings. The fact that PW3 said weapons were recovered and PW4 saying none was brought to the Station is not fatal. PW4 was at the CID office while PW3 was at Mowe Police Station.

The two therefore were not referring to the same Police Station and that cannot be a contradiction even though the same weapons were involved, however, different Police Stations in this case is a major factor in holding that there is discrepancy or contradiction. ​ Furthermore, PW3 told the Court that he did not recover ammunition from the scene of crime not that the offensive weapons were not recovered from the scene. Therefore, there is no contradiction in the evidence of PW3 and PW4 and the question whether dangerous weapons were recovered is not relevant here.

The evidence of PW1 was believed by the lower Court and it cannot be said to be unreliable. The items tendered as Exhibits F, G, H were recovered from the scene of crime by the Policemen who rescued PW1 and they were the items named by PW1. PW3 was not one of those who rescued PW1 rather the Policemen who were on duty nearby and who took PW2 along the Appellant to the Station. In the same vein, PW4 was not at the scene of crime. There is no contradiction and even if there were, such contradiction must be fundamental as to affect the case. See EFFIA V.

STATE (1999) LPELR-1025 (SC) wherein the apex Court held thus: “It is pertinent to state that it is settled law that for any conflict or contradiction in the evidence of prosecution witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the Court. See Onubogu & Anor. V. The State (1974) 1 All NLR (Pt. 11) 5; Nasamu v. The State (1968) NMLR 86; Enahoro v. Queen (1965) 1 All NLR 125; Ibe v. State (1992) 5 NWLR (Pt. 244) 642 at 649; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129.” Per EJIWUNMI J.S.C.

The next point to consider is the participation of one Saheed Ishola, the Appellant argued that the said Saheed Ishola engaged him to convey the stolen wires, the burden of proving that rests squarely on the Appellant and not the prosecution. The fact was established during investigation that Ishola did not participate in the robbery and the fact of engagement is within the particular knowledge of the Appellant and cannot be established by the Respondent. The failure to call Saheed Ishola by the prosecution did not mean that the Appellant could not have called him.

The Appellant did not request the Respondent to summon Saheed Ishola for his defence. Without a request, the Respondent could not have assumed the line of defence the Appellant wanted to adopt. After all there was a relationship between the Appellant and the said Saheed Ishola outside the Respondent, how then can the Appellant contend that the Respondent should have called Saheed Ishola for him without a request, even the case of IBRAHIM V. STATE (Supra) said the Respondent should make available witnesses as requested by the Appellant. There was no request here.

The prosecution is not bound to call a host of witnesses as long as the witnesses listed can prove the charge by evidence tendered in Court. See AJIBOYE V. FRN (2018) LPELR-44468 (SC) wherein the apex Court held thusly: “In any case, it is even not the law that the prosecution must call a host of witnesses to establish its case.

All it is required to do is to call witnesses who are material and would assist it in proving its case.” Per SANUSI, J.S.C. ​ The Appellant is misconceived to think that his intention of being at the scene of crime is a defence, he was arrested at the scene of crime and was identified clearly by PW1 as the person who inflicted injuries on him, tied him up and threatened him with a gun. The fundamental question to ask is whether it is reasonable to contend that the Appellant was at the scene at such an unholy hour (1am) merely to transport the wires on the request of Saheed Ishola.

Why was he carrying the goods at 1am? If the Appellant was arrested in the day time, the excuse of the Appellant may deserve some consideration but it sounds ridiculous to think that a reasonable person would believe such excuse, carrying out instruction at night in a place that is not owned by the person who allegedly contracted the Appellant and who refused to appear to testify on behalf of the Appellant. At the end, the excuse that the Appellant was engaged was not established by the Appellant. Agreed that mens rea is an essential ingredient in establishing the guilt of the Appellant.

Mens rea is simply a guilty mind and the drafts person of the criminal code outlined the mental elements or the requisite intent and that is what is known as mens rea of the offence alleged. The Appellant alleges that the mental element was not established. To establish a guilty intent can be conveniently proved from circumstantial evidence. The Appellant was clearly identified by the PW1, he was arrested at the scene of crime at 1am in the dark and he himself admitted being at the scene with offensive weapons.

What other intent or guilty mind needs to be proved outside the evidence before the Court. The Appellant did not discharge the evidential burden, he is expected to cast reasonable doubt on the prosecution’s evidence tending to establish his guilty criminal mind or the mens rea. So much fuss was made of the dictum in the case of ANI V. STATE (2009) 16 NWLR (Pt. 1168) 443 where the apex Court held that beyond reasonable doubt means fully satisfied, entirely convinced that the proven facts established the guilt of the accused.

Yes, the burden of proving the guilt of the accused person rested throughout on the prosecution but there is evidential burden too which was not discharged in this case. The law does not say that the Defendant does not bear the burden of refuting or rebutting the prosecution’s case. Rather, it affirms that the defence has burden of rebuttal. It says that that evidential burden befalls the defence only after the prosecution had led evidence proving prima facie the guilt of the defendant accused of committing an offence.

Section 131 (2) and 136 (1) of the Evidence Act, 2011 lay the burden of proving a particular fact on the person who wishes the Court to believe in its existence. Conterminously, the defence in criminal proceedings has the evidential burden of casting reasonable doubt on the inculpatory prosecution’s case. See ESSEYIN V. STATE (2018) LPELR-44476 (SC), PER EKO, J.S.C.

The Appellant had the burden to establish that he was at the crime scene for a different purpose, he did not raise an alibi and none could stand when he was arrested at the scene of crime and with eye witness account that identified him without any challenge. Another angle to the question of contradiction, the Appellant took the angle of inconsistency of Exhibit C and Exhibit K1 and K2, these are the statements of the Appellant. The current trend is that inconsistency rule does not apply to the person accused of crime. See SIMON V. STATE (2017) LPELR – 41988 (SC) and UZOMA V.

STATE (2018) LPELR-44765 (CA) wherein the Court held thusly: ” … “In R v Golder (1960) 1 WLR P.1169 Lord Parker CJ of England explained the inconsistency Rule when His lordship said that: “When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act.” This position of the law has long since been adopted and applied in Nigeria.

See Joshua v. Queen (1964) 1 ANLR P. 1 State v Okoro (1974) 2 SC P.73 Queen v Ukpong (1961) ALL NLR p. 25. The issue is not the inconsistency rule as it applies to a witness rather it is the inconsistency rule as it applies to an accused person. The law is long settled that the inconsistency Rule does not apply to an accused person.

Cases where an accused person confessional extra-judicial statements run contrary to his testimony in Court are not covered by the inconsistency rule…” Per LOKULO-SODIPE , J.C.A The developmental history of the rule was given in the lengthy quotation from the case of SMART V. STATE (2016) LPELR-40728 (SC) thusly: “I had occasion to deal with this question in my yet unreported leading judgment in Appeal No. SC.635/2013: Segun Akinlolu v. State (delivered on December 11, 2015) pages 11-20. There, I explained that the inconsistency rule traces its jurisprudential pedigree to England.

Its most eloquent formulation can be found in R v Golder (1960) 1 WLR 1169 where Lord Parker CJ held: “when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous Statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” Well before the decision in R v Golder (supra), the rule had been applied to witnesses only, Birch v R (1926) 1 CAR 26; also, R v Harris (1927) 20 CAR 144.

The first case to invoke that rule in Nigeria was Queen v. Ukpong (1961) ALL NLR 25, 26 which approved the statement of law in R v Golder (supra). At its said evolution in Nigeria, therefore, the posture of the Courts was that the rule was “Properly” applicable to the evidence of an ordinary prosecution witness. Subsequent decisions confirmed this posture, Joshua v The Queen (1964) 1 ALLNLR 1, 3 – 4, Agwu v. The State (1965) NMLR 18, 20, The State v Okoro (1974) 2 SC 73, 80 – 81, Onubogu v.

The State (1974) 9 SC 1, Williams v The State (1975) 9 – 11 SC 139, Boy Muka v The State (1976) 9 – 10 SC 305. Indeed, in Udo v The Queen (1964) ALL NLR 21, 24, Brett JSC resisted an attempt to extend the application of the rule to the previous confession of an accused person and his evidence. As noted above, on its adoption in Nigeria, the rule was applicable to the evidence of an ordinary witness. Since its adoption, it has not been an inflexible rule of law or practice. In order to ensure that its operation did not eventuate to injustice, the Courts had developed a safeguard.

Thus, in addition to considering the totality of the evidence, the witness was given an opportunity, while in the witness box, to explain the inconsistency. Bello CJN in Egboghonome v The State (1993) 9 SCNJ 1, 21 – 22, approvingly, quoted the observation of Idigbe JSC in Jizurumba v. The State (1916) NSCC (Vol. 10) 156 on the rationale for the introduction of this safeguard.

“A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in Court, or the inconsistency may, indeed, be minor or unsubstantial … in which case the inconsistency may fail to discredit his entire testimony.” Thus, it was only where the witness was unable to explain the inconsistency satisfactorily that the rule was applied. The rule was limited to the statement of a witness and his inconsistent testimony.

However, in 1985, the decision in Owie v The State (1985) 1 NWLR (Pt.3) 470, for the first time, extended the rule to the statement and evidence of the accused person. Subsequent decisions such as Omogodo v The State (1987) 5 – 7 SC 5; Stephen v The State (1986) 5 NWLR (Pt.46) 98; Oladejo v. The State (1987) 3 NWLR (Pt.61) 419, Umani v The State (1988) 19 NSCC (Pt.1) 137; Mbenu v The State (1988) 3 NWLR (Pt.84) 615 perpetuated this trend.

Interestingly, in 1989, this Court went back to the earlier position in Udo v The Queen, (supra) and held that the principle did not apply to an accused person and his confessional statement, Ikemson v The State (1989) 3 NWLR (Pt. 110) 455, 473. Such was the uncertainty that characterized application of the rule in Nigeria, hence, the law on effect of the inconsistency between the sworn testimony and previous statements made by an accused person, was enveloped in unwarranted recondity, see, C. C.

Nweze, Contentious Issues and Responses in Contemporary Evidence Law in Nigeria [Volume One (Enugu: IDS, University of Nigeria, 2003) 286. In 1991, in Asanya v The State (1991) 3 NWLR (Pt.180) 422, this Court had another opportunity to examine the rule. The question there was whether the rule was applicable when the witness was an accused person himself. In that case, the apex Court declined the invitation to overrule the line of cases in Omogodo v The State (supra); Stephen v The State (supra); Oladejo v. The State (supra); Umani v The State (supra); Mbenu v.

The State (supra) which had extended the rule to the accused person himself. This state of affairs continued until 1993 when, in Egboghonome v The State (supra), this Court streamlined the application of the rule.

Delivering the leading judgment of the Court, Bello CJN (Karibi-Whyte JSC dissenting) described the decisions in the Saka Oladejo and Asanya cases (supra) as “a departure from the long established principle laid down in Udo v The State (supra) and the several decisions of this Court thereafter that [the] inconsistency [rule] does not apply to retracted extra-Judicial confession of an accused. According to His Lordship, the application of the rule in R v Golder to retracted confessions would tantamount to overruling, by implication, all the relevant decisions of this Court from 1964 to 1992.

His Lordship was not unmindful of the sociological implication of the extension of the rule for he held [at page 31] that: “…grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustice to the society as murderers would be at large simply because after a second thought, they have retracted their confessions.” He therefore, overruled the decisions in Oladejo (supra) and Asanya (supra) and so on.

Consistent with the doctrine of stare decisis, post Egboghonome decisions have reverted to the position in Udo v The Queen (supra), namely, that the inconsistency rule does not apply to the previous confessions of an accused person and his evidence in Court.

The cases on this point are many. Only a handful will be cited here: Akpan v The State (2001) 15 NWLR (Pt.737) 745, Nsofor v The State (2004) 18 NWLR (Pt.905) 292, Dibie and Ors v State (2007) All FWLR (Pt.363) 83, Amoshima v State (2009) 32 WRN 47, Saidu v. State (2009) 29 WRN 86, Aiguoreghian v State (2004) 1 KLR (Pt.170) 129, 152, Adeoti v. State (2009) All FWLR (Pt.454) 1450, 1509-1511 etc.” Per NWEZE, J.S.C. The lengthen quotation above settles the fact that inconsistency rule does not apply to a person accused of committing a crime.

The Appellant still questioned the verdict arrived at by the trial Court, contending that the Respondent did not discharge the burden of proof. It was observed earlier that the burden on the Respondent is to prove all elements of the offence of armed robbery and conspiracy and I have in this judgment found that the elements were proved beyond reasonable doubt. The evidence of the eye witness was not challenged and was believed by the trial Judge. This issue is basically a re-argument of earlier issues resolved in this appeal.

We also looked at the evidential burden on the Appellant which was not discharged thus leaving the case of the Respondent standing unchallenged. It will serve no useful purpose repeating myself here. Proof beyond reasonable doubt is not proof beyond all shadow of doubt. See UKPONG V. STATE (2019) LPELR-46427 (SC) wherein the apex Court held thusly: “Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar.

That is why the expression “proof beyond reasonable doubt” cannot be employed conterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,”Dibie v State (2007) LPELR -941 (SC), Dimlong v Dimlong [1998] 2 NWLR (pt. 538) 381, 178; State v Gwangwan (2015) LPELR -24837 (SC). I have examined most notable authorities, ancient and modern.

They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt. 868) 166, 179. Hence, it connotes sufficiency of evidence, Nsofor v. State (2004) 18 NWLR (pt. 905) 292, 305…” Per NWEZE, J.S.C.

The conspiracy angle is simply an agreement to do an illegal act or a legal act by illegal means. See AWOSIKA V. STATE (2018) LPELR-44351 (SC) and YAKUBU V. STATE (2014) LPELR-22401 (SC) wherein the apex Court held thus: “It is well settled that conspiracy is seldom proved by direct evidence. In Obiakor Vs. The State (2002) 6 SC (Part II) 33 @ 39 – 40 this Court held, per Kalgo, JSC held: “Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means.

The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts.” Per KEKERE-EKUN, J.S.C It is trite that conspiracy is largely proved by inference and not by direct evidence. See YAKUBU V. STATE (Supra).

The evidence of PW1 which was not challenged clearly identified the Appellant and the second accused as part of the robbery gang and that they robbed him of the sum of N15,000.00. The Appellant admitted being part of the gang. The Respondent does not need to prove that there was a meeting with minutes of meeting. Conspirators don’t even have to have met or know themselves before conspiracy can be established. The physical presence and active participation of the Appellant and the second accused in the robbery is enough evidence to establish conspiracy.

They were in confederacy and acted in concert. I also agree with the findings of the trial Judge that conspiracy was proved. I so hold. The Appellant under issue five asked whether the trial Judge was right to convict the Appellant. Where the trial Court finds all ingredients of the offence as established by cogent evidence, the only duty to perform is to make a finding, the process was explained in the case of EMMANUEL V.

FRN (2019) LPELR-47925 (CA) by JAURO, JCA (as he then, now JSC) as follows: “In a criminal trial upon conclusion of evidence and addresses, if the trial Court finds the accused not guilty it will automatically acquit him in its judgment. On the contrary where the trial Court finds him guilty of the offence charged or any other offence, he will be convicted and the trial Court will pronounce its sentence on the accused person.” All the Appellant’s arguments under issue five are a repetition of the other issues resolved earlier in this appeal.

It is waste of judicial time to repeat findings on the same points made earlier. The guilt of the Appellant has been established and the trial Court cannot be faulted in finding the Appellant guilty of the offences of armed robbery and conspiracy. For the sake of emphasis, the Appellant was arrested at the scene of crime, he confessed to the crime, he was identified by the victim of the offence and he failed to shift back the evidential burden back unto the Respondent. All these and other findings made by the trial Judge are unassailable and must stand.

Consequently, I resolve all issues against the Appellant. The appeal lacks merit and is hereby dismissed. The judgment of the Ogun State High Court in Suit No.: AB/21R/2017 delivered By HON. JUSTICE P. F. ODUNIYI on the 20th May, 2020 is hereby affirmed.

FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I completely agree with the reasons advanced and the conclusion reached that the appeal is devoid of merit. It is settled law that it is the primary function of the trial Court or Tribunal to evaluate evidence placed before it, before arriving at a conclusion/decision.

It is only where and when the Judge/Court fails to evaluate the evidence or properly evaluate the evidence that an appellate can intervene and in itself evaluate or re-evaluate such evidence.

For a proper evaluation of the evidence adduced before it in a case, the trial Court must be sure or must ascertain that: (a) the evidence is admissible in law; (b) that such evidence being evaluated are relevant; (c) that the evidence or witness is credible and lastly; (d) the conclusiveness and probability of the evidence. See MOHAMMED VS. STATE (2021) 6 NWLR (1771)123, BROWN VS. STATE (2017) 4 NWLR (PT. 1556)341, ABIODUN VS. STATE (2013) 9 NWLR (PT. 1358)138.

In this appeal, there is no dispute that the Appellant was arrested at the scene of crime (locus criminis) in possession of offensive weapons at about 1.00am. The Truck driven by him was found laden with rods and wires stolen from the scene of crime. PW1 identified him as the person who inflicted injuries on him, tied him up and threatened him with a gun. The learned trial Judge evaluated the foregoing evidence amongst others and found it credible. The Appellant failed to demonstrate how the learned trial Judge failed to do a proper evaluation of the evidence placed before him.

I do not find any reason to interfere with the evaluation of evidence done by the trial Judge and his conclusion. It is for the foregoing and the fuller reasons given in the lead judgment that I also dismiss the appeal and affirm the judgment of the lower Court.

ABBA BELLO MOHAMMED, J.C.A.: My noble Lord, YARGATA BYENCHIT NIMPAR, had availed me with a draft of the lead judgment just delivered. I fully agree with His Lordship’s reasoning and conclusion that this appeal is unmeritorious.

The law is trite that in a criminal trial, the burden is always on the prosecution to establish with credible evidence and beyond reasonable doubt the guilt of the Defendant for the offence(s) with which he is charged. See Section 135(1) and (2) of the Evidence Act, 2011 and FRN v UMEH & ANOR (2019) LPELR-46801(SC), per Muhammad, JSC at pages 7 – 8, paras. E – B and EZEANI v FRN (2019) LPELR-46800(SC), per Okoro, JSC at pages 20 – 21, para. A.

This burden of proof, the prosecution can discharge through any, combination of, or all of the three ways of establishing the guilt of a Defendant, namely – (i) by reliance on a voluntary confessional statement of the Defendant; (ii) by direct evidence of eye witnesses to the crime; or (iii) through circumstantial evidence. See SAMINU v STATE (2019) LPELR-47622(SC), per Ariwoola, JSC at page 14, paras. A- E and BASSEY v STATE (2019) LPELR-46910(SC), per Sanusi, JSC at pages 9 – 10, para. C.

Before the trial Court, the Respondent had in proving the guilt of the Appellant for the offences of conspiracy to commit armed robbery and armed robbery, relied upon the eye witness evidence of PW1, who not only gave a detailed account of the robbery but also identified the Appellant as one of the robbers and graphically stated the role the Appellant played in threatening him with a gun, tying him up and inflicting injuries on him with a machete.

Added to the eye witness evidence of PW1, the Respondent also tendered as Exhibits F, G and H the weapons used in the commission of the robbery incident. Worse still for the Appellant, he was not only arrested at the scene of the crime, thus obviating the need for any identification parade, the Respondent also tendered Exhibits K and K1, the confessional statements of the Appellant.

In short, the printed record of appeal shows that the Respondent has by a combination of direct eye witness evidence, material evidence and the confessional statements of the Appellant, established beyond reasonable doubt that the Appellant committed the offences with which he was charged. See SAMINU v STATE (supra) and BASSEY v STATE (supra).

Given this position, the Appellant’s argument on the need for identification parade is misconceived as identification parade is not necessary in this case where he was arrested at the scene of crime and where he has confessed to committing the crime: NJOKU v STATE (2021) LPELR-53076(SC), per Nweze, JSC at pages 17 – 19, paras. A.

Again, the Appellant’s argument over retraction of the confessional statements attributed to him runs counter to his other argument over the failure to comply with the procedure stipulated in the Administration of Criminal Justice Law of Ogun State. He cannot claim that he did not make the statement over which he claims that the proper procedure for recording same was not complied with.

In any event, retraction of confessional statement does not make same inadmissible, and same can be relied upon by a trial Court, especially in this case where direct evidence of PW1, the eye witness to the robbery incident, as well as the material evidence of the weapons used, had corroborated those statements. See TOBI v STATE (2019) LPELR-46537(SC), per Sanusi, JSC at pages 17 – 20, paras. F – A, SHODIYA v STATE (2013) LPELR-20717(SC), per Muhammad. JSC at pages 26 – 27, paras. B – C; and LASISI v STATE (2013) LPELR-20183(SC), per Ariwoola, JSC at pages 51 – 52, paras. F – C.

The trial Court was therefore entitled to rely on those confessional statements in convicting the Appellant even if retracted, since the trial Court was satisfied as to its truth. See OKOH v STATE (2008) LPELR-8358(CA), per Lokulo-Sodipe, JCA at pages 29 – 30, para. E and UMAR v STATE (2015) LPELR-25960(CA), per Wambai, JCA at pages 17 – 18. para. B.

As for the argument of the Appellant over discrepancies in the evidence of the Respondent’s witnesses, it is only material contradictions in respect of a fact in issue that creates such doubt as would affect the finding or decision of the trial Court. See MUSA v STATE (2019) LPELR-46350(SC), per Muhammade,JSC at page 9, para. A; and GALADIMA v STATE (2017) LPELR-43469(SC), per Galinje, JSC at page 49, para. C. There are no material discrepancies in this case as could affect the credible evidence on record.

It is for the above reasons which have been more elaborately espoused in the lead judgment of my learned brother, YARGATA BYENCHIT NIMPAR, JCA, that I also find this appeal bereft of any merit. Accordingly, I join in dismissing same and in affirming the judgment of the trial Court delivered on 20th May, 2020.

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division (hereafter to be called the Court below), delivered on the 9th of February, 2018.

The appellant and other accused persons were convicted and sentenced to 40 years imprisonment for the offences of conspiracy and armed robbery contrary to Section 97(1) and 298 respectively, of the Penal Code Law of Kano State.

The charges against them in the amended charge sheet dated 14/7/2010, read as follows: 1st Head of Charge That you, Alhaji Tahir Yahaya, Salisu Adamu, Usman Hamza, Sani Ayuba, Muhammed Musa and Maikudi Haliu, on or about the 5th September, 2007 at about 1930hrs, at No. 900 Muhammed Gauyana Road, Hotoro GRA in Nasarawa Local Government Area, Kano State within the Kano Judicial Division, agreed to do an illegal act, to wit: rob Aisha Muhammed Yakassai of No. 900 Muhammed Gauyana Road, Hoyoro and that the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code (Cap 105) Laws of Kano State 1991. 2nd Head of Charge That you, Alhaji Tahir Yahaya, Salisu Adamu, Usman Hamza, Sani Ayuba, Muhammed Musa and Maikudi Haliu, on or about the 5th September, 2007 at about 1930hrs, at No. 900 Muhammed Gauyana Road, Hotoro GRA in Nasarawa Local Government Area, Kano State within the Kano Judicial Division, while armed with guns and other weapons robbed one Aisha Mohammed Yakassai of her following items: N250,000.00 cash, 13 sets of gold jewelries, 10 handsets, bangles and wristwatches valued at N1.8 Million and you thereby committed an offence punishable under Section 289 of the Penal Code (Cap 105) Laws of Kano State 1991.

​The case of the prosecution as told by the victim, Aisha Mohammed (PW1) is that the appellant was among a gang of armed robbers that robbed her on the 5th of September, 2007 when she came back home from greeting her mother who had just returned from a trip. The armed robbers had locked up her domestic staff in a room, after collecting their handsets. The armed robbers asked them to lie down at the living room, while they searched all the rooms in the house and found money and gold and when they heard Police siren, they escaped.

Thereafter, she was able to identify some of them, at the invitation of the Police, while the others were caught when they tried to sell the items to one Aliyu Abdulhamid.

The appellant and the other accused persons pleaded not guilty to the charges.

In proof of its case, the prosecution called 2 witnesses and tendered 6 exhibits. The appellant and the others testified for themselves and called no other witness.

In its judgment, the trial Court convicted them as charged and they were sentenced to 40 years imprisonment.

​Aggrieved by his conviction and sentence, the appellant appealed to the Court below vide a notice of appeal dated 27/7/2016, containing 3 grounds of appeal, from which the appellant formulated three issues for determination, by the Court below. They are: 1. Whether from the totality of the evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant to secure the appellant’s conviction at the trial Court for the offence of armed robbery as provided for by Section 289(1) of the Penal Code Laws of Kano State. 2.

Whether from the totality of the evidence adduced, the prosecution has proved its case beyond reasonable doubt against the appellant, to secure the conviction at the trial Court of the offence of criminal conspiracy as provided for by Section 97(1) of the Penal Code Laws of Kano State. 3. Whether exhibits 1 and 5 being confessional statements of the 3rd and 1st convicts can be used to convict the appellant without the appellant adopting the said exhibits?

The respondent distilled two issues for determination by the Court below, namely: 1. Whether from the totality of evidence, the offence of criminal conspiracy and armed robbery under Sections 97 and 289 of the Penal Code (applicable in Kano State), were proved against the appellant beyond reasonable doubt to warrant his conviction by the trial Court. 2. Whether from the circumstances of the case, the trial Court had properly used the confessional statement of the appellant to convict him of the offences of criminal conspiracy and armed robbery?

In its judgment, the Court below affirmed the judgment of the trial Court and dismissed the appellant’s appeal.

​Still aggrieved, the appellant appealed to this Court. The notice of appeal, filed on the 7th of March 2018, is upon six grounds.

In the appellant’s brief filed on the 6th of June 2018, three issues were donated to this Court for determination. They are: 1. Whether the failure of the lower Court not to consider issue No. 3 of the appellant’s issues for determination in determining the appeal at the lower Court is not tantamount to denial of the appellant’s right of fair hearing as guaranteed under Section 36 of the 1999 CFRN as amended? 2.

Whether the lower Court was right to have held that the appellant’s statement was a confessional statement to the commission of the offence as charged, thereby making the appellant one of the robbers that robbed PW1? 3. Whether from the evidence on record, the lower Court was justified in upholding the decision of the trial Court that the prosecution had proved beyond reasonable doubt, the offence of conspiracy and armed robbery against the appellant as provided for under the Penal Code Law of Kano State, to warrant the sentencing?

​The respondent’s brief of argument was filed on the 29th of March, 2019 but deemed filed on the 16th of October, 2019. Learned counsel for the respondent formulated sole issue for determination, viz: “Whether from the circumstances of the case and the totality of the evidence adduced, the offence of criminal conspiracy and armed robbery were proved beyond reasonable doubt to secure conviction of the appellant?”

I shall first consider the appellant’s issue one, which asks the question: “Whether the failure of the lower Court not to consider issue No.3 of the appellant’s issues for determination in determining the appeal at the lower Court is not tantamount to denial of the appellant’s right of fair hearing as guaranteed under Section 36 of the 1999 CFRN as amended?

It is contended for the appellant that the trite position of the law is that when a party raises an issue before the Court, such an issue must be considered and determined by the Court, and failure to so do, is tantamount to the denial of a party’s right to fair hearing as guaranteed by Section 36 of the CFRN 1999, as amended. Reliance was placed on the case of Agbo v. State (2006) ALL FWLR (Pt. 773) 1950, (2006) 6 NWLR (Pt. 977) 545.

​Learned counsel for the appellant argued that the failure of the Court below to consider the appellant’s issue three before it, occasioned a miscarriage of justice. He invited the attention of this Court to the appellant’s issue three at pages 178-181 of the record, and opined that had the Court below considered the said issue three, it would have exculpated the appellant from the offence charged, as the issue borders on the confessional statement of the appellant’s co-convict at the trial Court, which the trial Judge used to convict and sentence the appellant.

He posited that the law is trite that the confessional statement of an accused person is the only evidence against the accused person and no other, citing the case of State v. Gwangwan (2015) ALL FWLR (Pt. 801) 1495, (2015) 13 NWLR (Pt. 1477) 600.

He therefore urged this Court to resolve this issue in favour of the appellant and hold that the appellant’s right to fair hearing was breached, which occasioned a miscarriage of justice.

​Learned counsel for the respondent in his brief did not address the argument contained in the appellant’s brief in relation to the first issue. Be that as it may, failure by one party to counter the arguments of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. SeeFulani M. v. State (2018) LPELR 45195 (SC), (2019) 1 NWLR (Pt.1653) 237.

Let me, as a preliminary point, state that the law is well settled that, it is the duty of a Court either of first instance or appellate jurisdiction to consider all the issues joined and argued by the parties before the Court and where it failed to do so, valid reasons must be advanced for the neglect.

Particularly for penultimate Courts whose decisions are subject to appeal, there is need for them to pronounce on all issues articulated before them so that the appellate Court may have the opportunity of being seised of the facts and to assess the decisions on each such issues in order to avoid situations where the ultimate Court may have to remit a case to the lower Court for hearing. It is only the apex Court that can determine a case on a single issue which terminates the proceedings or appeal. See: Honeywell Flour Mills Plc v. Ecobank (2018) LPELR 45127(SC), (2019) 2 NWLR (Pt.1655) 35.

The next point of interest my Lords, is to ascertain whether the Court below failed in its duty to consider all the issues raised for determination before it. At page 197 of the record, the Court below held thus: “I shall consider this appeal on a single issue reframed thus: “Whether from the totality of the evidence adduced, the ingredients of the offences of conspiracy and armed robbery were proved by the respondent beyond reasonable doubt to secure the conviction of the appellant?”

The Court below thereafter determined the appeal based on the sole issue reframed by it.

In State v. Sani (2018) LPELR 43598 SC, (2018) 9 NWLR (Pt.1624) 278, this Court held that: “The law is trite, that an appellate Court has the right or duty where appropriate, to formulate, re-formulate or reframe issue or issues for determination of an appeal especially in a situation where it is of the opinion that the issue(s) as formulated by learned counsel to any of the parties did not encompass the actual points in controversy in the appeal. In doing so however, the issue(s) to be re-formulated by the appellate Court must be consistent with the ground(s) of appeal.”

I am unable to uphold the contention of the appellant that the Court below did not consider his issue three. For the avoidance of doubt, the 3rd issue raised by the appellant at the Court below reads as follows: “Whether exhibits 1 & 5 being confessional statements of the 3rd and 1st convicts can be used in convicting the appellant, without the appellant adopting same?”

At page 199 of the record, the Court below, in its summary of the appellant’s brief, stated thus: “ …He contended that exhibit 1 (statement of the 3rd convict) and exhibit 5 (statement of the 1st convict) relied upon by the trial Court to convict the appellant do not implicate the appellant in the commission of the crime and that the confessional statement of an accused does not bind his co-accused…”

The Court below then held inter alia, as follows, at pages 203-206 of the record that: “it is trite that the Court can convict solely on the confessional statement of the accused person on it is direct, positive and unequivocal. In exhibit 3 contained at page 101-104, the appellant confessed to the commission of the armed robbery… The trial Court went on a voyage of collaboration to get something outside the confessional statement of the appellant. It placed reliance therefore on the evidence of PW1 and PW2…”

​From the foregoing, I must say that the grouse of the counsel of the appellant that the Court below did not consider the issue he raised is of no moment since the sole issue framed by the Court below had encapsulated all the issues raised by him and all the points raised in his submissions were well attended to and duly considered. No miscarriage of justice was occasioned to him at all and also no rules of fair hearing was infringed or violated.

It is glaringly obvious, as borne out of the record that the trial Court did not rely upon exhibit 1 (statement of the 3rd convict) and exhibit 5 (statement of the 1st convict) in convicting the appellant, but on the appellant’s confessional statement and the evidence of PW1 and PW2. The argument of the appellant, therefore, that the trial Court relied on the confessional statements of the other convicts, cannot avail him. The Court below was right in affirming the decision of the trial Court. I therefore resolve this issue against the appellant.

The summation of this appeal my Lords, is as captured in the respondent’s sole issue, which questions: “Whether from the circumstances of the case and the totality of the evidence adduced, the offence of criminal conspiracy and armed robbery were proved beyond reasonable doubt to secure the conviction of the appellant?”

It is submitted for the appellant that the appellant’s extra-judicial statement found at pages 101-104 of the record, and admitted as exhibit 3 at the trial Court, was not a confession to the offence he was charged with.

Learned counsel for the appellant referred to the wording of the 2nd head of charge at pages 6-7 of the record, and argued that exhibit 3 only showed that the appellant was involved in a series of robberies, and not the particular on…. he was charged with, which is robbing one Aisha Muhammad of No. 900 Muhammad Guayana Road, Hotoro GRA Nassarawa LGA, Kano State.

​He argued that neither the victim, nor any of the prosecution witnesses identified the appellant as one of the robbers, which corroborated the unchallenged testimony of the appellant at pages 83-87 of the record that no one was able to identify him, as one of the armed robbers. Reliance was placed on the case of Michael Ebeinwe v. State (2011) 3 SCM 56, (2011) 7 NWLR (Pt.1246) 402.

On whether the prosecution was able to prove the offence of armed robbery against the appellant, it is the view of learned counsel for the appellant that the prosecution was unable to discharge the burden of proof imposed on it, in that the ingredients of the offence of armed robbery, as listed in the case of Olanipekun v. The State (2012) All FWLR (Pt. 607) 763, (2016) 13 NWLR (Pt. 1528) 100, to wit: that there was a robbery; that the robbery was an armed robbery; that the accused was the armed robber or one of the armed robbers; were not proved against the appellant.

​He noted that though it was apparent from the testimony of PW1 that she was robbed, the prosecution failed to establish that it was an armed robbery. According to learned counsel for the appellant, it was incumbent on the prosecution to tender the offensive weapon used in the commission of the offence to corroborate the testimony of PW1 that not only was she robbed, but that the robbery was an armed robbery.

He insisted that the failure of prosecution to tender both the offensive weapon used in the alleged robbery, and the stolen items allegedly recovered from one Aliyu Abdulhamid, was fatal to the case of the prosecution.

Learned counsel for the appellant argued that none of the prosecution witnesses identified the appellant as one of the people that robbed the victim, and nowhere in the appellant’s extra-judicial statement, exhibit C, was the appellant linked to the offences charged.

Relying on the case of Oduneye v. State (2001) All FWLR (Pt. 38) 1203, (2001) 2 NWLR (Pt.697) 311, he urged this Court to discharge and acquit the appellant.

On the offence of conspiracy, it is submitted for the appellant that exhibit 3, which was relied upon by the trial Court in convicting the appellant, did not in any way, implicate the appellant as conspiring with the other convicts.

Learned counsel for the appellant relied on the case of Sani v. State (2015) All FWLR (Pt. 763) 1885, (2015) 15 NWLR (Pt.1483) 522 and argued that it is apparent from the record that the prosecution failed to prove the ingredients of conspiracy against the appellant.

This Court is thus urged to resolve this issue in the appellant’s favour, allow the appeal, set aside the judgment of the Court below and discharge and acquit the appellant.

In response, it is contended for the respondent that exhibit 3, which is the confessional statement of the appellant, and which was admitted in evidence without objection, is the best guide to the truth of the role played by the appellant, and which alone, can ground the appellant’s conviction. Reliance was placed on the case of Ogoala v. State (1991) 2 NWLR (Pt. 175) 509.

Learned counsel for the respondent argued that exhibit 3 was sufficiently corroborated by the uncontroverted evidence of PW1 and PW2 and the trial Court was right, as affirmed by the Court below to convict the appellant as charged. The case of Mafa v. The State (2012) LPELR-9297 SC, (2013) 3 NWLR (Pt. 1342) 607 was cited and relied on.

​On the offence of conspiracy, it is the view of learned counsel for the respondent going by the provisions of Section 96  of the Penal Code of Kano State as well as the case of Simon v. State (2017) 1 SCNJ 414, (2017) 8 NWLR (Pt.1566) 119, all the Court needs is only to be satisfied with the complicity of the accused person in the offence, and as rightly held by the trial Court at page 207 of the record, and affirmed by the Court below: “conspiracy to commit an offence is quite often inferred from circumstantial evidence. It is based on common intent, or purpose.

When once there is such evidence to commit the substantive offence, it is settled that it does not matter that any of the conspirators did what”

He therefore urged this Court to resolve the issue against the appellant, and hold that the respondent, as prosecution, proved the offence of criminal conspiracy and armed robbery, beyond reasonable doubt, and dismiss the appeal.

The long and short of the stance of the appellant is that the trial, conviction and sentence of the appellant are a nullity as there was no nexus between the appellant and the commission of the offences charged and the respondent had failed to prove the case against the appellant beyond reasonable doubt.

​It is settled law that in order to discharge the burden of establishing the guilt of an accused person beyond reasonable doubt in a charge of armed robbery, the prosecution must prove the following: 1. That there was robbery or series of robberies. 2. That each of the robberies was an armed robbery. 3. That the appellant was the robber or one of those who participated in the armed robbery. See: Ameh v. State (2018) LPELR 44463 (SC), (2018) 12 NWLR (Pt. 1632) 99; State v. Fadezi (2018) LPELR-44731(SC), (2018) 18 NWLR (Pt. 1650) 1; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561.

​PW1 is the victim of the armed robbery attack and she gave a firsthand account of what transpired on that day. According to her, the appellant was among a gang of armed robbers that robbed her on the 5th of September, 2007 when she came back home from greeting her mother who had just returned from a trip. The armed robbers had locked up her domestic staff in a room, after collecting their handsets. The armed robbers asked them to lie down at the living room. While they searched all the rooms in the house and found money and gold and when they heard Police siren, they escaped.

Thereafter, she was able to identify some of them, at the invitation of the Police, while the others were caught when they tried to sell the items to one Aliyu Abdulhamid.

​PW2, is a Police Detective. He testified that a case of armed robbery was reported to their control room at Bompai Kano Police Command; that the armed robbers were laying siege at the house of Hajiya Aisha Mohammed Guyana Hotoro Quarters, Nasarawa GRA but the armed robbers had already left the scene of the crime before they got there. The next day, the victim, PW1 reported how the armed robbers attacked her and stole her belongings and properties. They took the sum of N250,000.00, ten handsets and 13 sets of gold and jewelries valued at N1.8 Million.

Subsequently, the convicts were arrested whilst trying to sell the set of jewelries to one Aliyu Abdulhamid of Sallari Quarters, Kano. The appellant and the other convicts were taken to the State CID where they made their statements to the Police. The statements of the appellant and the 3rd, 4th and 6th convicts were admitted without objection, whilst that the 1st and 2nd convicts were admitted after a trial within trial had been conducted. The statement of the appellant, admitted without objection was marked exhibit 3.

The appellant in his defence stated that he was arrested while he was trying to help some people change the tyre of their car. That after 3 days he was brought out of his cell and was told to remove his clothes. He was taken to accused/suspects. Guns and other weapons were displayed and he (the appellant) was told to sit down. That he spent a total of 7 months at the State CID before he was taken to a Magistrate Court for the offence of armed robbery and later taken to the Central Prison, Kano.

Under cross-examination, his statement was read out to him and he stated that he had no idea about what had been read out to him. That he made his statement in Arabic.

​In the instant case, I hold the view that there was no serious doubt as to the identity of the appellant as one of the robbers. Although PW1 did not specifically mention him, PW2 in his evidence testified as to how the appellant was apprehended while he and the other convicts were arrested at the point they were attempting to sell the sets of gold to one Aliyu Abdulhamid. The appellant confessed to his part in the crime in his statement, exhibit 3.

The statement which is found at pages 101-104 of the record, and it reads inter alia, as follows: ‘’They explained that their vehicle is smaller that I should come 4pm and meet with him and he brought out gun that he came from Naibawa with it Alhaji Tahir two rifles and we met at Naibawa at 6pm, Alhaji Tahir Salisu Adamu Jan Way Alh.

Usman Hanza, Driver and I and we went to a house along Naibawa side by Road… I held one gun and Alhaji Tahir held one gun and Salisu held one and we attacked the house and we met one old man and we got N24,000 and one handset and the people raised alarm and Jan Way and the driver ran with the car and everywhere we went, we do released (sic) some shots in the air and we jumped across the express and ran away ….”

​The learned trial Judge considered the facts as stated above along with the evidence of the prosecution witnesses and found that their evidence corroborated the contents of the confessional statements.

In other words, he properly applied the settled guidelines in determining the truthfulness of the confessional statement, to wit: (i) Whether there is anything outside the confession which shows that it may be true; (ii) Whether the confessional statement is in fact corroborated. (iii) Whether the relevant statement of fact made in it are most likely true as far as they can be tested; (iv) Whether the accused had the opportunity of committing the offence; (v) Whether the confession is possible, and; (vi) Whether the alleged confession is consistent with other facts that have been ascertained and established.

See: Ubierho v. The State (2005) 5 NWLR (Pt.919) 644. The above guidelines are also known as the test in R v. Sykes (1913) 8 Cr. App. Reports 233. The settled position of the law is that although a Court can act on a retracted confessional statement, such statement must be subjected to the guidelines enumerated above.

​I am of the considered view that there was no uncertainty whatsoever regarding the identity of the appellant as one of those who committed the offence. He confessed to his part in the crime and thereby fixed himself at the scene. Furthermore, even though the appellant retracted his confessional statements at the trial, the learned trial Judge was correct in the manner in which he treated the statement by considering their weight in relation to the other evidence adduced and proved by the prosecution.

The Court below at page 206 of the record reviewed the findings of the learned trial Judge in respect of exhibit 3 as follows: “… The trial Court went on a voyage of collaboration to get something outside the confessional statement of the appellant. It placed reliance therefore on the evidence of PW1 and PW2 that there were 6 people that took part in the armed robbery, including the appellant.

Furthermore, on the testimonies and evidence of the 6 accused persons including that of the appellant, the trial Court held at page 146 amongst others that “although each denied committing the offence they have been charged with … I have carefully gone through the testimony of each and every one of the accused persons and I find their testimony to be an afterthought which they concocted to try one escape justice.”

The Court below was in agreement with the decision of the trial Court, which decision I also endorse.

​It has been contended for the appellant that it was incumbent on the prosecution to tender the offensive weapon used in the commission of the offence to corroborate the testimony of PW1 that not only was she robbed, but that the robbery was an armed robbery, adding that the failure of the prosecution to tender both the offensive weapon used in the alleged robbery, and the stolen items allegedly recovered from one Aliyu Abdulhamid, was fatal to the case of the prosecution.

​I have here before listed the ingredients of the offence of armed robbery punishable under Section 298 of the Penal Code. The essential ingredient of the offence of armed robbery is simply that at the time of the robbery, the accused person was carrying arms or in company of any person carrying such arms or any offensive weapons. Whether such arms were used on the victim or not is also not material at all provided all offensive weapon was proved to have been held by any of accused person at the material time.

Whether there was a shooting or not or whether the appellant carried it or triggered the shot or even if it was not shot at all, is immaterial. The important thing is that the holding of such arms did or would obviously cause violence or fear of injury on the victim against him or his property and for that reason he (the victim) surrendered such property for fear that he will be injured.

The law is trite that in order to secure a conviction for the offence of armed robbery, the prosecution is only duty bound to prove; (a) That there was an armed robbery. (b) That the accused was armed in company with any person so armed; and (c) that the accused while with arm or arms or in company with person so armed, participated in the robbery.

Once the prosecution proves the aforementioned elements of the offence of armed robbery beyond reasonable doubt, its failure to tender the arms or offensive weapon cannot lead to his acquittal because of the possibility of the accused person doing away with the arms or weapon after the commission of the crime in order to exculpate himself from detection or arrest. See: Ameh v. State (2018) LPELR-44463 SC; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561; Okosi v.

A.-G., Bendel State (1989) 1 NWLR (Pt. 100) 642. ​I must emphasize here that there is no principle of law that insists that the prosecution must tender weapons used in the alleged robbery in order to prove the guilt of an accused person. The tendering of the weapons used depends on the circumstance of the case, for instance, where the prosecution stated that any weapon used in the robbery was recovered. See Olayinka’s case (supra). The hues and cries of learned counsel for the appellant that the respondent did not tender any weapon, cannot avail him. See also: Abiodun v.

The State (2013) All FWLR (Pt. 700) 1257 at 1269 Para E, (2013) 9 NWLR (Pt.1358) 138.

In respect to the offence of conspiracy, while the appellant is of the view that it was not proved; the respondent disagrees. For a fact, conspiracy is an offence that is often deduced or inferred from the acts of the parties and not usually by direct evidence of the meeting of the minds. The reason is simple, that discussions and agreements to do an illegal act or carry out a legal act by illegal means are transactions in secret and normally shrouded from those not part of the deal. The dictum of this Court per Adekeye, JSC (as he then was) inOnyenye v.

State (2012) LPELR-7866 SC, (2012) 15 NWLR (Pt. 1324) 586 is useful. According to his Lordship:

“In effect, conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between the accused persons. The conspirators need not know themselves and need not have agreed to commit the offence at the same time. The Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned.”

Taking that matter of how conspiracy is established in the realm of what transpired in this case from the evidence of the prosecution witnesses and the confessional statements of the appellant, and placing them alongside the defence put up by the appellant, the trial Court and as affirmed by the Court of Appeal had no difficulty in reaching the conclusion that the standard of proof beyond reasonable doubt had been met. I agree. What is expected of the prosecution is proof beyond reasonable doubt and not beyond a shadow or an iota of doubt. I call in aid the case of Nwaturuocha v.

State (2011) 2 – 3 SC (Pt. 1) 111524, (2011) 6 NWLR (Pt. 1242) 170. ​One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution as done in this matter, the charge is proved beyond a reasonable doubt.

The concurrent findings of the two Courts below are that there was a robbery, it was an armed robbery and the appellant was one of the robbers. Also the two Courts accepted the extra-judicial statement of the appellant! i.e. exhibits 3 as a confessional statement. Also found by the two lower Courts was that the offence of conspiracy had been firmly established from the circumstances discerned from evidence before Court. Moreover, the failure to object to the admissibility of the statement exhibit 3, has derailed the subsequent attempt by the appellant to disown the statement.

I cannot fault the Court below in its judgment.

The question at this point would be to what shall I place reliance on, to disturb, alter, reverse or set aside these findings? I see no such anchor in sight as I rely on what the appellate Courts including the Supreme Court had enjoined over the years to go along those findings concurrently made. In Nwaturuocha v. State (supra), this Court, per Rhodes-Vivour, JSC (as he then was), held as follows: “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. This Court will not interfere with concurrent findings of the trial Court and the Court of Appeal on issues of fact except where the findings are perverse or there is established a miscarriage of justice or a violation of principles of law or procedure…” In my view, the trial Court carefully considered and evaluated the evidence in this case and came to the correct decision, as affirmed by the Court below, that the case against the appellant has been proved beyond reasonable doubt.

In the light of the foregoing, I am satisfied that the prosecution has carried out the burden laid upon it by law to prove the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery, beyond reasonable doubt.

This appeal is therefore lacking in merit and it is hereby dismissed.

​The judgment of the Court of Appeal, Kaduna Division, which affirmed the conviction and sentence of 40 years imprisonment for the offences of conspiracy and armed robbery contrary to Section 97(1) and 298 respectively, of the Penal Code Law of Kano State on the appellant, is hereby affirmed.

AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the lead judgment just delivered by my learned brother, Aboki, JSC, and I agree with him that this appeal totally lacks merit. He dealt eloquently and meticulously with the Issues canvassed in the appeal and I will add a few words on confession, which is an admission made by an accused stating or suggesting the inference that he committed that crime. It is settled that a confessional statement is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence – see Solola v.

State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, said: “A confessional statement is the best evidence… It is a statement of admission of guilt by the accused and the Court must admit it in evidence, unless it is contested..

If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement once a confessional statement is admitted, the prosecution need not prove the case against the accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.

Thus, it is well settled that a confessional statement, which is made voluntarily, even if subsequently retracted, is sufficient to sustain a conviction – see Solola v. State (supra) and Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1. In this case, in addition to the fact that the appellant was apprehended at the point where he and his partners in crime were attempting to sell jewelry taken from PW1, he gave graphic details of his participation in the armed robbery attack wherein they dispossessed of PW1 of same in exhibit 3, his confessional statement.

​In other words, the appellant placed himself at the scene of the crime and was also found with the proceeds of the crime while attempting to sell it. Exhibit 3, the confessional statement he made to the Police, is the best form of evidence against him, and it goes without saying that the two lower Courts were right to attach probative value to the said exhibit 3. He has not provided any reason for this Court to interfere with or disturb their concurrent findings, and I will also dismiss this appeal, which lacks merit. The appeal is dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment written by my learned brother, Abdu Aboki, JSC, in this appeal and agree that the appeal lacks merit and ought to be dismissed.

The appeal is dismissed by me too in terms of the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: I have had a preview of the illuminating judgment of my learned brother, Abdu Aboki, JSC. I agree entirely with the reasons leading to the conclusion that the appeal be dismissed.

I have nothing more to add. Therefore, I adopt the leading judgment as mine, including the consequential orders made therein.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Abdu Aboki, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein. Appeal dismissed.

Judgment

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was brought by the Appellant against the judgment of the High Court of Ogun State, Ijebu Ode Judicial Division, sitting at Ijebu Ode delivered on August 20, 2020 Coram A. A.

Babawale, J. in which the Appellant was convicted and sentenced to death by hanging on two count charges of: a) CONSPIRACY TO COMMIT ARMED ROBBERY contrary to Section 21(b) and punishable under Section 16(1) (a) & (b) of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016.

PARTICULARS OF OFFENCE ADELAJA TIMIDAYO on or about 15th day of August, 2017 at about 19:30 hours at Ikoto area, Ijebu-Ode in the Ijebu-Ode Judicial Division conspired with another now at large to commit Armed Robbery. b) ARMED ROBBERY contrary to and punishable under Section 16(1) of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016.

PARTICULARS OF OFFENCE ADELAJA TIMIDAYO (M) on or about the 15th day of August, 2017 at about 19:30 hrs at Ikoto ara, Ijebu-Ode in the Ijebu-Ode Judicial Division while armed with cutlass robbed one Julius Monday of his Bajaj Motorcycle with Reg. No. LAR 239 WM, the sum of N75, 000, a Techno phone and a pair of shoes.

Upon arraignment, the Appellant pleaded not guilty. At the trial, the Respondent called one witness, who was the complainant, in proof of its case, while the Appellant gave evidence for himself and thereafter closed his case. PW1, a commercial motorcyclist, testified that on 15/9/17, he picked up the Appellant, who was known to him, and one other person, as passengers from Okunowa to Ikoto. At Ikoto, the other passenger put dried pepper and soap into his eyes while he was still on his motorcycle. Consequently, they all fell on the ground.

The same passenger made away his motorcycle while the Appellant macheted him with a cutlass. PW1 said he then engaged the Appellant in a fight. PW1 gave the time that the incident took place as between the hours of 8pm and 9pm. Men from a Vigilante group in the area intervened and took them both to Igbeba Police Station where the Appellant was detained while PW1 left for the hospital. PW1 further said he was also robbed of his Techno Phone and gave the registration number of his motorcycle as LAR 239 WM.

The Appellant, who testified that he was a timber worker, denied that he had robbed PW1. He said that his wife was ill on the day of the incident. He went to Ikoto to get a particular herb, which he usually used to cook for her whenever she was ill. At Epe garage, he joined a motorcyclist, PW1, with his cutlass to take him to Ikoto on a fare of N50.00. When they got to Ikoto, he gave PW1 the sum of N500, expecting change of N450, rather PW1 gave him N400. A dispute ensued and, in the process, a fight erupted between the Appellant and PW1 over the fare.

The Appellant testified that PW1 called on other commercial motorcyclists who joined in beating him. The Vigilante group in the area came to the scene and both the Appellant and PW1 were taken to Igbeba Police Station. The Appellant in his testimony stated that no pepper was found on him and that though he had a cutlass, he did not machete PW1. The Appellant further denied that he robbed PW1 of either his Techno phone or motorcycle, and that he was the only one on the motorcycle.

After the conclusion of trial, the learned trial Judge dismissed the defence of the Appellant but relied on the evidence of PW1 to convict and sentence the Appellant to death by hanging. Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal against the said judgment on 8/10/2020, on three grounds of appeal, pages 45 – 51 of the Record of Appeal.

The parties filed Briefs of Argument. The Appellant’s brief was filed on 11/12/2020, while the Respondent’s brief was filed on 15/3/2021 but deemed properly filed and served on 22/6/2021. At the hearing of the appeal on 22/6/2021, the Briefs of Argument were respectively adopted by O.A. Alao, Esq., with S.B. Olarinde, Esq., for the Appellant, and Bukuola Duroajaiye, Esq., with M. Shittu, Esq., for the Respondent.

For the Appellant, two issues distilled for the determination of the appeal were: i. Whether the learned trial Judge rightly held that the Respondent proved its case against the Appellant beyond reasonable doubt as enjoined by law and/or whether the doubts established in the case of the prosecution ought to be resolved in favour of the Appellant (ground 1 and 3). ii. Whether the trial Judge was right to have relied on the evidence of PW1 to convict the Appellant (ground 2).

For the Respondent, two issues were formulated for determination of this appeal: a) Whether the prosecution had proved its case beyond reasonable doubt. b) Whether the Judge was right to have convicted the Appellant on sole evidence of PW1.

The issues formulated by the parties seek the same resolutions. I shall adopt the same in consideration of this appeal and shall determine both Issues together.

Issues 1 and 2 The crux of the Appellant’s complaint was that the learned trial Judge convicted him for the two – count charge relying solely on the evidence of PW1. The trial Court totally disbelieved the testimony of the Appellant, describing it as an afterthought, but without calling for corroborative evidence to support PW1’s evidence, the trial Court held that the Respondent has successfully proved its case beyond reasonable doubt.

The Appellant complained that the decision of the lower Court was reached notwithstanding the fact that there were doubts in the case of the Respondent, which ought to have been resolved in favour of the Appellant.

It was submitted that the position of the law is that before any accused person can be convicted of any criminal offence, the prosecution must prove its case beyond reasonable doubt by virtue of Sections 135(1) and 139 Evidence Act, citing Ayub Khan v. State (1990) 2 NWLR (PT 172) 127 at 133-134; Akinfe v. State (1998) 3 NWLR (PT 85) 729; Aruna v. State (1990) 6 NWLR (PT. 155) at 12. Any doubts shown in the evidence for the prosecution must be resolved in favour of the accused person, citing Anekwe v State (2014) 10 NWLR PT 1415 at 353 SC.

The charge against the Appellant was that he robbed one Julius Monday of his Bajaj Motorcycle with Reg. No LAR 239 WM, the sum of N75,000, a Techno phone and a pair of shoes. PW1 gave no evidence as to who collected his Techno phone and the pair of shoes. He also gave no evidence that any sum of money whatsoever was stolen from him or that any pair of shoes was collected from him by the Appellant. It was argued that the evidence of PW1 was riddled with contradictions, creating doubt in the mind of a reasonable man as to whether there was actually a robbery incident.

The state of the evidence also left the question of whether or not someone else at the scene of the incident took advantage of the fisticuff between PW1 and the Appellant to steal the motorcycle or whether there had been no robbery incident and the account of PW1 was a made-up story. It was submitted that any doubt, contradiction or uncertainty as to whether it is the accused person who commit the offence, ought to be resolved in favour of the accused person, relying on Dibie v State (2005) All FWLR (PT. 259) 1995 at 2017.

In proving a criminal charge of armed robbery, the prosecution does not need to call a host of witnesses but the prosecution is mandatorily expected to call vital witnesses to prove the commission of the alleged offences beyond reasonable doubt. It was contended that the Respondent was expected to call the vital witnesses to give credible and or corroborative evidence of the victim of the armed robbery.

These vital witnesses were the vigilantes who arrested the Appellant, the Police officer who investigated the crime; evidence of the circumstances in which the Appellant was arrested, and any eye witness or other witness who should give credible evidence of the armed robbery. Reliance was placed on Nweneke v State (2019) LPELR 47018 (CA). It was submitted that the Respondent, having failed to call material witnesses, had failed to prove its case against the Appellant. The burden of proof on the Respondent had not been discharged. It was not the duty of the Appellant to prove his innocence.

The vigilante men first arrested the Appellant and PW1 and took them to Igbebe Police Station, where the Appellant was detained. It was posited that the Appellant could have been detained for the offence of assault following the fight between him and PW1, and not conspiracy to commit armed robbery and armed robbery. The Vigilante men ought to have been called as witnesses to enable them give corroborative evidence in a bid to assist the Court in determining whether the Appellant was actually arrested at the scene for robbery.

It was argued that the evidence of the vigilantes that arrested the Appellant was vital to proving and establishing the guilt of the Appellant, citing Ogudo v State (2011) 12 MJSC PT. 1, 108 at 112.

The Respondent failed to call the Investigating Police officer (IPO) who was also a vital and material witness to their case. It was submitted that the failure of the Respondent to ensure the attendance of the Police officer to give evidence at the trial of this case goes to show that no case of armed robbery was investigated and the Respondent has failed to prove the charge against the Appellant. Reliance was placed on Eyonaowa v COP (2014) LPELR – 22339 (CA).

This leaves a prima facie doubt in the mind as to whether the Appellant committed the offence of armed robbery and whether a case of armed robbery was reported at all. The extra judicial statement of PW1 was not tendered in evidence before the Court and no exhibit was tendered in evidence. The decisions in Akinbisade v State (2006) 27 NSCQR 743 at 747; Onah v State (1985) 3 NWLR (PT. 12) 236, 237 were cited and relied on. ​ There was no other evidence outside the evidence of PW1, the alleged victim, to corroborate his evidence.

It was conceded that while the evidence of one credible witness, which is accepted and believed by the Court may be sufficient to justify a conviction, in the surrounding circumstances of this case, the trial Court ought to have called for further evidence outside the testimony of the victim to corroborate the evidence of PW1.

The trial Court, in the circumstance of this case, ought to have been wary of accepting and convicting on the testimony of a single witness, the victim of the crime, without looking for corroborative evidence, more so, when the Appellant gave an account which is consistent with his innocence and without his testimony being discredited. The following cases were cited and relied upon: Orepekan v State (2005) 4 A.C.C.R 193; Danjuma v State (2003) 3 A.C.L.R 524; Ali v. State (2003) 3. A.C.L.R. 581.

Counsel for the Appellant described the findings of the trial Court as to the guilt of the Appellant for the offences of conspiracy and armed robbery, without any credible evidence of the investigating officer on such findings in the course of investigation, as perverse. ​ The Court was further invited to note that at the trial Court, the extra-judicial statement of the Appellant was not tendered in evidence, the cutlass alleged to have been used in carrying out the alleged offence of armed robbery was not tendered in evidence.

No medical report on treatment of PW1 for any cutlass cut or machete cut or wound was tendered in evidence. There was also no evidence before the trial Court that PW1 picked up two passengers together at the same spot or that they were together when they boarded his motorcycle. Counsel posited that the lower Court was speculative in concluding on the guilt of the Appellant on the alleged offences by placing heavy reliance on the evidence of the PW1.

The Court was urged to set aside the judgment of the trial Court in view of the principle of justice that it is better for a thousand guilty persons to go unpunished than for one innocent person to be punished. The punishment of the alleged offence was death by hanging. In order to convict a person for such serious charge, the evidence against the Appellant must be so clear, direct and compelling that guilt is the only inference, relying on State v Nwosu (1986) 4 NWLR (PT. 35) 346.

In the absence of other pieces of evidence and testimonies of material witnesses, the trial Court cannot pick and or choose which witness, whether for the prosecution or for defence, to believe as to the guilt of the Appellant, citing State v Christopher Onubogu (1974) 11 NWLR (PT. 11) 5 – 6.

Counsel further queried the identification of the Appellant by the Respondent as the person who robbed him and hurt him with a cutlass. This was in regard to his evidence that dried pepper was put in his eyes as a result of which they all fell down from the motorcycle, and this incident took place at night. Further, the Appellant in the course of trial gave account of how he was arrested, where he was arrested and what led to his arrest and those that arrested him. This evidence given by the Appellant in defence of his case at the trial Court, was not controverted by the Respondent.

Such uncontroverted evidence should be accepted as proof of the fact it seeks to establish, more so when the extrajudicial statement of the Appellant was not tendered in evidence. It was submitted that the lower Court ought to have relied on the uncontroverted evidence of the Appellant and give due weight to same instead of tagging it as an afterthought citing F.C.D.A v. Nzelu (2014) 5 NWLR (PT. 1401) 565 at 581. The Court was urged to hold that the prosecution failed to discharge the burden of proof placed on it.

Counsel further emphasized that the evidence of PW1 was too remote to be solely relied upon to convict the Appellant, without the evidence of other vital and key witnesses to resolve key issues in doubt, citing Okoroji v. State (2005) 1 NCC 279 at 294 – 295. All doubt or contradictions should be resolved in favour of the Appellant, relying on F.R.N v. Abubakar (2019) 7 NWLR (PT. 1670) 113 at 129. Counsel posited that if all such doubts were resolved in favour of the Appellant, the doubts on the entire evidence of PW1 would portray same as unreliable and unjustifiable.

The Court was urged to allow the appeal and set aside the judgment of the trial Court.

For the Respondent, it was conceded that the prosecution in a criminal trial is required to establishing the guilt of the accused person beyond reasonable doubt, citing Abirifon v State (2013) NWLR (Pt 1372) 587; Ankpegher v State (2018) LPELR-43906 (SC). On the offence of conspiracy, reliance was placed on Bello v State (2010) 12 SCM (PT 2) 28 at 34 to submit that the offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the person had not met each other.

Concluded agreements can be inferred by what each person does, or does not do in furtherance of the offence of conspiracy, relying on Simon v State (2018) LPELR-45998(CA). Counsel for the Respondent relied on the evidence of PW1 to argue that the common purpose of the Appellant and the other passenger was to rob PW1, which was carried out by their act of rubbing a substance described as dried pepper and soap on PW1, followed by the infliction of machete cut on him and ultimately the taking away of his motorcycle belonging to PW1, established ingredients of conspiracy.

The Court was urged to infer conspiracy therefrom and to hold that the Appellant did conspire with another person at large to commit the offence of armed robbery.

The Respondent further argued that the ingredients of armed robbery, as espoused in the case of Adekoya v State (2010) LPELR 3604 (CA), were established by the evidence of PW1. By the same testimony of PW1, the identity of the Appellant was established. It was submitted that the evidence of a single credible witness can establish a case beyond reasonable doubt. The eye witness who doubled as the victim of a crime gave evidence fixing the Appellant to the scene of crime, thereby establishing the identity of the Appellant.

The decision in State v Suleiman & Ors (2018) LPELR-45636 (CA) was cited and relied on in submitting that the trial Court was right in relying on the evidence of PW1. A single credible witness can establish a case beyond reasonable doubt unless where law requires corroboration. The Court was urged not to disturb the decision of the trial Court but to dismiss this appeal and affirm the decision of the trial Court.

Resolution It is well settled in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt. See Ogundiyan v. State (1991) LPELR-2333(SC), [1991] 1 NSCC 448.

While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. See Ayinde v. The State (2018) LPELR- 44761(SC); Abokokuyanro v. The State (2016) LPELR-40107(SC) ;The State v. Musa Danjuma (1997) LPELR-3216(SC). By virtue of the unequivocal provisions of Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended, an accused person is presumed to be innocent until his guilt of the offence is established.

A plethora of judicial pronouncements have established that proof beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR-3035(SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. (now CJN) in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373 and cited with approval in Agbo v.

State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242(SC) at page 48 of the E-Report, was given in this manner: “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.” In Shande v State (supra), an explanation for the phrase proof beyond reasonable doubt was expressed by the noble Lord, Pats-Acholonu, JSC thus, page 19 of the E-Report: “…proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions.

Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.” See also Udo v. State (2006) 7 S.C. (PT. II) 83. ‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness.

The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed. See Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Ime Idiok v. State (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required.

Thus, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.

The guilt of an accused person can be established by: 1. His direct, positive and voluntary confessional statement; 2. Circumstantial evidence. 3. Direct oral evidence given by a victim or by a witness who saw and watched the act. See Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra).

Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, which provides that: (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.

The Appellant was charged with criminal conspiracy and armed robbery under Section 21 of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016, punishable under 16(1) (a) & (b) which provides as follows: –

1. Any person who commits robbery while armed, (a) with any firearms or any offensive weapon or who is in company with any person so armed; or (b) at or immediately before or immediately after the time of the robbery, the said offender wounds or uses any personal violence with any person, is guilty of an offence of armed robbery and liable upon conviction under this law to be sentenced to death. Section 21 thereof provides: 6.

Any person who – (a) aids, counsels, abets or procures any person to commit an offence under Sections 15, 16, 17, 19 and 20 of this Law; or (b) conspires with any person to commit such an offence; or (c) or supplies, procures or provides any person with firearms for use to commit an offence under Section 16 of this Law, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this law.

In order to secure conviction for the offence of armed robbery, prosecution must prove, beyond reasonable doubt, the following elements of the offence: 1. That there was a robbery or series of robberies. 2. That the robbery or each robbery was an armed robbery. 3. That the accused was the robber or one of those who took part in the armed robbery. See: Dawai v. State (2017) LPELR-43835(SC); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction. See Ugboji v. State (2017) LPELR-43427(SC).

It is now to see if these elements were proved by the Respondent as required by law.

That there was a robbery The evidence of the complainant, PW1, which was not controverted under cross-examination, was that he was violently dispossessed of his motor bicycle with Registration Number LAR 239 WM, and his Techno phone. Although the charge the Appellant faced also included robbery of the sum of N75,000.00 and a pair of shoes, these items were not mentioned by PW1 in evidence as part of his loss.

That the robbery was an armed robbery and that the accused person was the robber or one of those who took part in the armed robbery. I shall consider these two elements together in view of the evidence adduced. Armed robbery means simply stealing plus violence, used or threatened. The offence of armed robbery is committed when the offender is armed with any firearms or any offensive weapon or is in company with any person so armed, or at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person. See Aruna v.

The State (1990) 6 NWLR (Pt.155) 125; Tanko v. State (2009) (2009) LPELR-3136(SC).

The evidence of PW1 was that dried pepper and soap were put in his eyes by the other passenger, who he had carried with the Appellant, as a result they all fell off the motor bicycle. The Appellant then attacked him with a cutlass, while the other passenger made away with the motor bicycle. The Appellant as DW1 completely denied this account. He testified that his wife was sick. He needed to get some herbs for her and took his cutlass.

He rather said he was the sole passenger on the motor bicycle and had a dispute with PW1 over the fare charged when he got to his destination, which led to fisticuffs. As they fought, his cutlass fell down. He denied that he made any statement at the police station. PW1 under cross-examination said, page 10 of the Record of Appeal: “The defendant matcheted me on my head and right hand from when the defendant matcheted me I had scares (sic) on my body.”

The lower Court registrar, who was directed by the learned trial Judge to look for the scars, found no scar on the head of PW1 but confirmed a scar on his right shoulder.

The prosecution is required to prove that a weapon capable of causing grievous harm was involved in the robbery. An offensive weapon has been described as any article made or adapted for use for causing injury to the person being robbed or intended by the person having it for such use by him. See State v. Fadezi (2018) LPELR-44731(SC); Sowemimo v. State (2010) LPELR-4972(CA).

The offensive weapon alleged to have been used here is a cutlass. Section 2 of the Prohibition of Forcible Occupation of Landed Properties, Armed Robbery, Kidnapping, Cultism and Other Anti Violence and Other Related Offences Law of Ogun State, 2016 classified cutlass as an offensive weapon. There is no doubt that while the major use of a cutlass may not be as a weapon of attack, a cutlass could be used as an offensive weapon. See Kayode v The State (2012) LPELR-7999(CA).

As expressed by Olatawura, JSC in Sele v State (1993) 1 NWLR (PT 269) 276, (1993) LPELR-3030(SC) at page 23: “A farmer is allowed to carry his cutlass, a butcher is allowed to carry his knife, but where the cutlass or the knife is put into unlawful use e.g. stabbing with the intention to facilitate the commission of a crime, the weapon therefore becomes an offensive weapon. It is the use made of the weapon and the manner it is used that qualifies it to be an offensive weapon.” See also Dibie v The State (2007) LPELR-941(SC). A cutlass may have a sharpened edge or dull edge.

PW1 testified: “He used a long cutlass which has only one sharp side.”

The cutlass was not tendered in evidence. It must be emphasized that there is no principle of law requiring that the weapon used in armed robbery must be tendered to prove the offence and secure a conviction. See Adisa v The State (2018) LPELR-46340(SC); Awosika v The State (2018) LPELR-44351(SC); Sadiku v The State (2011) LPELR-4912(CA); Esene v The State (2013) LPELR-20699(CA). If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, cannot be basis of acquittal; Olayinka v The State (2007) LPELR-2580(SC); John v.

The State (2019) LPELR-46936(SC). The evidence must be such that there is cogent, reliable and authentic oral and documentary evidence which the Court believes and admits. See Simon v State (2017) LPELR-41988(SC); Adeyemo v State (2010) LPELR-3622(CA). I shall return to this point.

The prosecution must also prove that the accused person was the robber or one of those who took part in the armed robbery. This is a fundamental requirement, because while there may have been a robbery in which the robber(s) was armed, if the accused person was not proved to have been one of the armed robbers, he cannot be lawfully convicted.

It is crucial to examine the evidence adduced by the Respondent. PW1 testified that he and the Appellant were separated in their fisticuffs by vigilante men and were both taken to the Police Station at Igbeba. The Appellant was detained while he, PW1, left for the hospital. DW1 said, page 13 of the Record of Appeal:

“The place where we fought was not far from the commercial motorcyclist garage. Other commercial motorcyclists came to the scene and called the name of motorcyclist who was engaged in a fight with me. They all stared to be me (sic) accusing me as one of the thieves who steal motorcycles. The vigilante groups in the area came and met us at the scene and took us to the Police Station at Igbeba…The incident happened at about 5pm.”

PW1 had testified that the incident took place at between 8pm – 9pm. This difference is crucial. 5pm, when it is not usually dark, is a far cry from 8pm – 9pm, when it is usually quite dark.

Further, while PW1 said he was attacked by the Appellant and the other passenger, at large, the Appellant as DW1 denied that there was any other passenger. PW1 said that dried pepper and soap were put in his eyes by the other passenger.

Under cross-examination, he said, page 9 of the Record of Appeal: “It is correct that initially when pepper was put in my eyes I could not see, it was when I got up and cleaned my eyes with my hand that I could see slightly.” There was no evidence of how he realized that the substance allegedly placed in his eyes was a combination of dried pepper and soap, and merely cleaning his eyes with his hands cleared his vision!

It is also curious that he had time to clean his eyes with his hands since his evidence was that after the substance was poured into his eyes, they all fell to the ground, where he was macheted by the Appellant with a cutlass while the other passenger took away his motorcycle.

PW1 testified that he had scars on his head and right hand from the cuts alleged to have been given to him by the Appellant with his cutlass. But, while the trial Court found no scar on his head, it found a healed round scar on his right shoulder, which without more, does not prove it was the cut from a cutlass by the Appellant. PW1 in evidence said he was treated at General Hospital, Ijebu Mushin. He said he was given a Police Form to take to the Hospital. The form was not tendered in evidence.

The degree of injury that resulted from the alleged cutlass cuts by DW1 was therefore not in evidence. ​ There was no evidence from any Investigating Police Officer on the arrest or detention of the Appellant. There was no investigation report or extra judicial statement alleged to have been made by the Appellant tendered in evidence.

The learned trial Judge held, page 40 of the Record of Appeal: “The evidence the vigilante men would give had been given by both the PW1 and the defendant, I do not think the failure to call the vigilante men can be regarded as fatal to the case presented by the Prosecution. The learned defence counsel also argued that failure to call the IPO shows the case was not investigated. The Principal State Counsel answered this submission that the inability to call the IPO was brought to the notice of the Court.

I feel constrained to explain further that only two witnesses were listed on the Information Paper, the complainant and the IPO. The case had suffered several adjournments.

The Court had a backlog of cases because the Court barely sat in 2019 as I was on a national assignment in Calabar, on the day the Court closed the case of the prosecution the learned Principal State Counsel still asked for another adjournment but the adjournments was refused.” She further held, page 43 of the Record of Appeal: “The vigilante men met both parties in the ensuing scuffle and they took both of them to the police station. In this case, the involvement of the police came later.”

With due respect to the learned trial Judge, the gravity of the offence and the punishment prescribed by law compelled more detailed consideration of the evidence adduced by the trial Court. In the first place, PW1 and DW1 were not in agreement as to the time the incident took place and on whether there were two passengers or just one person, being the Appellant. Further, DW1 testified that he was also bloodied in the fight with PW1, that the blood on his body was seen by the police when he was taken to the station by the vigilante men.

The Court cannot speculate on whether a wounded and unarmed victim was able to also inflict injury on his alleged assailant. Evidence from at least one of the vigilante men who separated their fight would have corroborated the time that the incident took place and, given details of any injuries sustained by both or either of them. The evidence of the IPO, which was foreclosed by the learned trial Judge, was also important.

The IPO would have availed the trial Court of a report of his investigation of the incident.

The learned trial Judge found the evidence of PW1 credible, holding, page 42 of the Record of Appeal: “I am convinced from the evidence of PW1 that the defendant was one of the armed robbers who attacked him on the day of the incident…”

The Appellant was thereupon convicted on the charges of conspiracy to commit armed robbery and armed robbery. It is important to note that the Appellant was charged with robbing PW1 of a motorcycle Number LAR 239 WM, a Techno phone, N75,000.00 and a pair of shoes. However, PW1 gave no evidence of losing the sum of N75, 000.00 and a pair of shoes to the Appellant and his alleged accomplice. Thus, without any evidence from the complainant, PW1, on the loss of these items, the Appellant stood convicted by the trial Court for the offences as charged.

It must be emphasized that although the established position of the law is that there is no obligation on the prosecution to call a host of witnesses, the quality of evidence from the witness called must be such as can sustain the charge. See Odili v The State (1977) LPELR-2221(SC); Olayinka v The State (supra). I am of the considered view however that the state of the evidence adduced by the Respondent, which was solely the evidence of PW1, was not such that could with certainty result in a positive conclusion against the Appellant.

Armed robbery is a capital offence. Before one is sent to the gallows, the nature of the evidence ought to expose the guilt of the accused person beyond reasonable doubt. See Akwuobi v. State (2016) LPELR-41389(SC). There must be no other rational conclusion that could be drawn from the evidence other than the guilt of the accused person. Our explicit Constitutional provisions are unambiguous in the protection of the rights of an accused person.

The provisions of Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and, of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, have received judicial interpretation. See Williams v State (1992) LPELR-3492(SC); Ajayi v. The State (2013) LPELR-19941(SC); Ogu v. Commissioner of Police (2017) LPELR-43832(SC).

One undebatable consequence of these provisions is that until the allegation of the commission of a crime by an accused person is absolutely proved beyond reasonable doubt by the prosecution, the accused person must be presumed to be innocent of the crime. In Williams v. The State (supra), the Apex Court, per Kutigi, JSC (as he then was) stated clearly, page 9 of the E-Report: “There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty.

There is therefore no question of an accused proving his innocence before a law Court. For the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt.”

In this light, the Court cannot unravel by speculation, evidence which is foggy or vague in any particular in order to declare the guilt or otherwise of an accused person. That would be akin to working from an answer to the question. Indeed, any fogginess or inconsistency in evidence adduced against an accused person ought to be resolved in his favour. It is well settled that when there are doubts created in the mind of the Court as to the culpability of the accused person, these doubts ought to be resolved in favour of the accused person. See Federal Republic of Nigeria v.

Mohammed Abubakar (2019) LPELR-46533(SC); Afolahan v. State (2017) LPELR-43825(SC); Oforlete v. State (2000) LPELR-2270(SC); Okonji v The State (1987) LPELR-2479(SC). In Nwosu v State (1986) LPELR-2134(SC) at page 20, the Noble Law Lord, Aniagolu, JSC eloquently put it this way: “A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made.

It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.” The underlying established consideration has always been that it is better for ten guilty men to escape justice than for an innocent man to be condemned unjustly. See Shehu v. The State (2010) LPELR-3041(SC). The Supreme Court, per Obaseki, JSC, in Saidu v The State (1982) LPELR-2977(SC) at page 28-29, graphically proclaimed:

“It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in our streets and thread the Nigerian soil and breathe the Nigerian air as free and innocent men and women.” It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged. On this issue, the apex Court, per Obaseki, JSC in Ogundiyan v.

State [1991] 1 NSCC 448, (1991) LPELR-2333(SC) at pages 13-14, said: “The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said: “As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v.

White 4 F & F 383 at 384 where the learned Baron said: – In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.” (Emphasis mine).

It is on the above considerations that I find that I am unable to agree with the conclusions of the learned trial Judge on the conviction and sentence of the Appellant for the offences of conspiracy or armed robbery.

There is therefore merit in this appeal. The appeal succeeds and is hereby allowed. The conviction and sentence of the Appellant by the High Court of Justice, Ogun State, sitting at Ijebu Ode delivered on 20/8/2020 is hereby set aside. The Appellant is accordingly discharged and acquitted.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Appellant was convicted of the offences of conspiracy to commit and armed robbery, which offences attract capital punishment. The lower Court held that the offences charged were proved beyond reasonable doubt and imposed the supreme punishment of the death penalty. It has been held that a judgment which imposes the capital punishment must be arrived at based on analytical reasoning that attracts confidence. The apex Court stated as follows in NDIDI vs.

THE STATE (2007) ALL FWLR (PT 381) 1627 at 1650-1651: “In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him at any single minute, must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn.

It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.” See also EBRI vs. THE STATE (2004) 11 NWLR (PT 885) 589 at 605. Furthermore, it would seem that the lower Court did not adequately advert to the consideration which ought to affect the mind of a trial Court when it comes to weigh the effect of evidence in a charge attracting capital punishment. In NWOSU vs. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, JSC referred to the case of EGBE vs.

THE KING (1950) 13 WACA 105 where a passage in the 10th Ed. of Best on Evidence was referred to and stated: “The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the Tribunal, as reasonable men beyond all reasonable doubt.”

I read in draft, the leading judgment of my learned brother, Onyekachi Aja Otisi, JCA and I entirely agree from the analysis of the evidence, that the persuasion of guilt from the evidence adduced in this matter did not amount to a moral certainty as the evidence relied on by the lower Court was not cogent, credible and compelling enough to warrant the conviction of the Appellant. The law is now firmly settled by a plethora of authorities that it is better for nine guilty persons to escape than for one innocent person to suffer.

More pungently, it is better to have an erroneous acquittal than an erroneous condemnation. See UKORAH vs. THE STATE (1977) 4 SC 167 at 177, OLAKAIBE vs. THE STATE (1990) 1 NWLR (PT 129) 632 at 644 and SHEHU vs. THE STATE (2010) LPELR (3041) 1 at 10.

The several doubts in the case of the prosecution, which have been assayed in the leading judgment, make it lucent that the offences charged were not proved beyond reasonable doubt. The Appellant deserves the full benefit of the doubts. See OMOPUPA vs. THE STATE (2007) LPELR (8571) 1 at 45. In the circumstances, I equally join in giving the Appellant the benefit of the doubt by setting aside the decision of the lower Court delivered on 20th August, 2020 which embodies the conviction of the Appellant and the sentence of death imposed upon him.

A verdict of discharge and acquittal is hereby returned in respect of the two-count charge preferred against the Appellant.

FOLASHADE AYODEJI OJO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA. I agree with his reasoning and conclusion. It is an extant rule of evidence that in criminal matters, the prosecution succeeds only when it proves its case beyond reasonable doubt against the accused.

As a corollary to the foregoing, it is an elementary rule in our adversarial jurisprudence or in the administration of criminal justice that where there exists any doubt in the case of the prosecution, such doubt must be resolved in favour of the accused person. See FEDERAL REPUBLIC OF NIGERIA VS ABUBAKAR (2019) 7 NWLR (PT. 1670)113; SANI VS STATE (2015) 15 NWLR (PT. 1483)522; UGBOJI VS STATE (2018) 10 NWLR (PT. 1627)346; NWEZE VS STATE (2018) 6 NWLR (PT.1615)197.

InOLALEKAN VS STATE (2001) 18 NWLR (PT. 746) 793 At 822 PARAGRAPH G, the Supreme Court per Onu, JSC held as follows: “This Court has decided that for an accused person to be entitled to the benefit of doubt, the doubt must be genuine and reasonable one arising from some evidence before the Court. See State vs. Aibangbee (1988) 3 NWLR (Part 84)548.”

My learned brother identified gaps in the evidence of the prosecution witnesses which were not explained. This has occasioned doubts which must be resolved in favour of tie Appellant. It is for this and the fuller reasons ably adumbrated in the lead judgment that I also find merit in this appeal and allow it. I abide by the consequential orders contained in the lead judgment.

Judgment

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the Judgment of the High Court of Bayelsa State sitting at Yenagoa delivered on the 24th day of January, 2017 in Charge No: OHC/3C/2013 by Honourable Justice M.A. Ayemieye.

The Appellant and two other accused persons were arraigned before the High Court of Bayelsa State on two counts charge of Conspiracy and Armed robbery. The two counts charge read: COUNT ONE Conspiracy to commit felony contrary to Section 444(a) of Criminal Code Law, Bayelsa State, 2006. PARTICULARS OF OFFENCE Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in Oporoma Judicial Division of Bayelsa State, conspired together to commit felony to wit: armed robbery.

COUNT TWO Armed robbery (sea piracy) contrary to Section 329(2) of the Criminal Code Law, Laws of Bayelsa State, 2006. PARTICULARS OF OFFENCE Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in  Oporoma Judicial Division of Bayelsa State, robbed Solomon Eriye of a speed boat and its 75 horse power Yamaha engine, a Samsung phone valued at fifteen thousand Naira (15,000.00) and the sum of N20,000.00, while being armed with a gun.

They pleaded not guilty to the counts of charge. The 2nd accused person before the lower Court, Tombra Tiemo is the Appellant in this appeal.

The Prosecution/Respondent in proof of their case before the lower Court called three witnesses and tendered exhibits, while the Accused/Appellant and co-accuseds testified in their defence. Trial commenced. At the conclusion of trial, the learned trial Judge found the Accused/Appellant and co-accused persons guilty of the offences charged against them and convicted and sentenced them to five years and fifteen years respectively, the sentence to run concurrently.

Aggrieved with the Judgment, the Appellant appealed to this Court, vide an Amended Notice of Appeal filed on the 14th of February, 2020 but deemed properly filed on the 30th of April, 2020. The Amended Notice of Appeal contained six grounds with their particulars.

​The Appellant’s brief dated and filed the 4th day of May, 2020 was settled by Chief Kingsley Chukwu. In it, three issues were distilled for determination thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

1. “Whether the Judgment of the Lower Court is not against the weight of evidence in this case?” (Grounds 1, 2, 3 and 4). 2. “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offences?” (Ground 5). 3. “Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015” (Ground 6)

The Appellant’s reply brief dated 15th day of October, 2020 was filed on the 20th October, 2020 but deemed properly filed on the 30th of November, 2020. Learned counsel for the Appellant adopted the briefs and urged the Court to allow the appeal.

The Respondent’s brief dated the 20th day of May, 2020 was filed on the 8th of July, 2020 but deemed properly filed on the 30th of November, 2020. Gladys Ikiere, Esq., settled the brief. She formulated two issues for determination as follows: 1. “Whether there is competent appeal before this Court?” 2. Whether the Judgment of the Lower Court is not against the weight of evidence?”

Counsel adopted the brief and urged the Court to dismiss the appeal. I adopt the Appellant’s issues to resolve the appeal and issues one and two will be taken together.

ISSUE ONE 1. “Whether the Judgment of the Lower Court is not against the weight of evidence in this case.” 2. “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offence?”

On issue one, learned counsel for the Appellant argued that the trial Judge erred in law when he held that the prosecution has proved the guilt of the Appellant beyond reasonable doubt despite the manifest flaws in the evidence of the prosecution. He referred to the evidence of PW1 which said the alleged incident took place on the 10th of December, 2012 while PW2 said it was on the 9th of December, 2012.

​That further to the contradictions on the actual day the offences were committed, the evidence of the whereabout of the instrument (gun) used in the alleged robbery contradicts one another, as the first lap of evidence said the Appellant threw it in the river and the second lap said the Appellant returned it to Daniel. Counsel submitted that the contradictions are fundamental as against the decision of learned trial Judge that the contradiction is trivial and minor.

Submitting further that the contradictions in the evidence of the prosecution which raised doubts, the trial Court ought to have resolved the case in favour of the Appellant and the trial Court’s failure do so, caused grave miscarriage of Justice and we are urged to so hold.

Referring to Section 27(1) and (2) of the Evidence Act, 2011, it is submitted that a confessional statement of an accused person is not admissible if it is not obtained voluntarily. The Court was referred to Musa Vs State (2018) 13 NWLR (Pt.1636) 310, on factors listed by the Supreme Court to be considered to determine the veracity and correctness of a confessional statement. Also referred is the case of Kazeem Vs State (2009) All FWLR (Pt.465) 1749.

​The contention of the learned counsel for the Appellant is that the confessional statement of the Appellant which was adjudged free and voluntary by the trial Court was not corroborated by the testimonies of PW1, PW2 and PW3, which shows that the confession was not true. That the trial Court did not abide by the decision of the Supreme Court on the need to test the veracity of the confessional statement using the six factors in Musa Vs State (supra) having regard to the retraction of the confessional statement by the Appellant during trial.

Counsel also argued that the lower Court erred in law when it observed that the Appellant does not understand English language but the Police (PW3) stated that the Appellant made his confessional statement in English without an interpreter and still convicted him based on the confessional statement. He referred to Nwocha Vs State (2012) 9 NWLR (Pt.1306) 571 and State Vs Jibrin (2018) 5 NWLR (Pt. 1611)3.

That the confessional statement of the Appellant is incompetent as it was not voluntarily made which caused grave miscarriage of justice to the Appellant for being convicted for conspiracy and armed robbery.

On issue two, relying on Section 131(1) and (2) of the Evidence Act, and the case of INEC Vs Asuquo (2018) 9 NWLR (Pt. 1624) 317, learned counsel for the Appellant submitted that the burden of proof lies on the prosecution and the burden must be proved beyond reasonable doubt. It is his submission that the prosecution did not prove the offence of conspiracy and armed robbery charged against the Appellant beyond reasonable Court.

That before the prosecution can be said to have proved the guilt of the accused beyond reasonable doubt, the ingredients of the offence must be established by the prosecution. He referred to Balogun Vs State (2018) 13 NWLR (Pt.1636 323 and Orisa Vs State (2018) 11 NWLR (Pt. 1631) 436 on the ingredients of conspiracy and armed robbery that must be established by the prosecution to sustain the charge against the Accused/Appellant.

Learned counsel argued that the evidence adduced by the prosecution did not prove that there was robbery at all as PW1 said he was robbed on the 10th of December, 2012 while PW2 stated in his evidence that he received information through phone that PW1 was robbed on the 9th of December, 2012. That PW1 could not properly identify the Appellant as he could not say the type or colour of cloth the Appellant was wearing on the day of the alleged robbery and there was no identification parade conducted.

It is submitted that with the contradictions in the evidence of the prosecution which created doubt, the benefits of the doubt must be given to the Appellant. The Court was referred to Mohammed Vs State (supra).

It is finally submitted that the trial Judge was wrong when he held that the prosecution has proved the guilt of the Appellant for the offences of conspiracy and armed robbery beyond reasonable doubt. We are urged to so hold and set aside the Judgment of the trial Court.

Learned counsel for the Respondent submitted in response that the prosecution proved its case beyond reasonable doubt as required by law. With regard to the contradiction on the date of incident as given by PW1 and PW2, counsel argued that there was no contradiction because PW1 gave a narration of what happened on the 9th of December, 2012 with regard to the armed robbery committed by the Appellant and co-accuseds.

That assuming but not conceding there were contradictions in the evidence of PW1 and PW2, the contradiction is not material as their evidence when read holistically, there is no doubt that an offence of armed robbery took place on the 9th of December, 2012. The case of Egwumi Vs State (2013) FWLR (Pt.678) 824 at 846 paragraph F – G was referred to.

Relying on the case of Musa Vs State (supra) and Okoh Vs State (2014) All FWLR (Pt. 736) 443, learned counsel for the Respondent submitted that the prosecution met the conditions i, ii, iii and v and the evidence of PW1 that he saw the Appellant and co-accused together at a burial ceremony in Opuma was corroborated by PW3. That the trial Court was right in convicting the Appellant and the Court is urged to dismiss the appeal.

The contention of the Appellant’s counsel on issue one is that the Judgment of the trial Court is against the weight of evidence, impliedly the complaint is on the improper evaluation of evidence placed before the trial Court. The issue couched as an omnibus ground connotes that the decision of the trial Court cannot be supported by evidence adduced by the successful party which the Court either wrongly accepted or that the inference it drew on conclusion it reached based on the accepted evidence is unjustifiable in law.

It denotes that when the evidence adduced by the complaining Appellant if weighed against that given by the Respondent, the Judgment rendered to the Respondent is against the totality of the evidence placed before the trial Court.

In ascertaining the weight of evidence the trial Court is enjoined by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. See Mogaji Vs Odofin (1978) 4 SC91; Military Governor Lagos State Vs Adeyiga (2012) 5 NWLR (Pt.1293) 291; Agala Vs Okusin (2010) 10 NWLR (pt. 1202) 412 and Impact solutions Ltd Vs Int’l Breweries Plc (2018) 16 NWLR (Pt. 1645) 377.

​The law is settled that evaluation of evidence is the primary duty of the trial Court who heard and watched the demeanour of witnesses at trial. To discharge that burden, the trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on two different pans of scale to determine which is heavier, not in terms of quantity but quality of the testimonies.

See Ayuya Vs Yonrin (2011) 10 NWLR (Pt.1254) 135; Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311 and Odutola Vs Mabogunje (2013) 7 NWLR (Pt.1356) 522.

The Appellant’s grouse is against the evidence of PW1 and PW2 with regard to the date of the alleged commission of the offence which he branded as contradictory. That while PW1 said the incident happened on the 10th of December, 2012, PW2 said it was on the 9th of December, 2012. He also complained that the whereabout of the gun used in committing the alleged robbery was contradictory. The contradictions he said are fundamental but that the trial Court convicted the Appellant.

The law does not insist that there cannot be contradictions in the evidence of witnesses called by a party on any issue in contention, but the contradiction should not be material in such a way that they cast serious doubt on the case presented as a whole by that party. See State Vs Odomo (2019) 4 NWLR (Pt.1662) 191 at 197; Bassey Vs State (2012) 12 NWLR (Pt.1314) 209; Sani Vs State (2015) 15 NWLR (Pt.1483) 522 and Chukwu Vs State (1996) 7 NWLR (Pt.463) 686. ​It is not every contradiction in the case of the prosecution that would adversely affect the case of the prosecution.

It is only material contradiction that can negatively affect or vitiate the case of the prosecution. See Abusu Vs State (2017) 7 NWLR (Pt. 1564) 171; Deriba Vs State (2016) LPELR-40345 and Joshua Vs State (2019) 12 NWLR (Pt. 1685) 131.

In the instant case, the contradiction highlighted in the testimonies of PW1 and PW2 as to the date of the commission of the offence and the whereabout of the gun used in committing the armed robbery are not material. The factor eliminating the materiality of the contradictions in the evidence of PW1 and PW2 is the established fact in the evidence of the prosecution witnesses that the Appellant conspired with others and committed the armed robbery.

Counsel also argued that the confessional statement of the Accused/Appellant is not admissible as it was not obtained voluntarily, and it was not corroborated by the evidence of the prosecution witnesses PW1, PW2 and PW3.

A confessional statement does not become inadmissible merely because the accused denies making it even though when such a retraction takes place, the Court is cautioned to seek evidence, no matter how slight, outside the confessional statement to show that the confession was probable. See Olude Vs State (2014) 7 NWLR (Pt. 1405) 89; Udo Vs State (2016) 12 NWLR (Pt. 1525) and Egbogbonome Vs State (1993) 7 NWLR (Pt.782) 543.

Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict, even if retracted at the trial. See Igbinovia Vs State (1981) 2 SC 5; Adebayo Vs State (2014) 12 NWLR (Pt.1422) 613 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 507.

Exhibit “PR16” is the confessional statement of the Accused/Appellant where he gave a narration of what happened in respect of this case. It is stated therein: “On the 9th of December, 2012, I was at Okaka Junction when Timi Okpo and his friend whom I do not know his name but Timi knows him better called me on phone, that I should come and meet them at town Yenagoa on business. When I got there, I actually met Timi and his friend.

They brief me that they had a deal and they want me to part take, that they have the money to hire a speed boat, if the driver taken us to our destination, on the way we will threaten the driver and collect the boat for a buyer to buy it. And Timi friend said he will provide gun to carry out the operation if possible. After our discussion, on the same day Timi went and hired a speed boat and engine at such water side. Timi deceived the driver that he will take us to Agobiri Community for a ceremony.

After the arrangement, three of us entered the speed boat at swah water side and we left for the journey. We drove up to thirty minutes and very close to Agobiri community of Southern Ijaw local government area in Bayelsa State. At a point we ordered the driver to stop and he immediately obeyed. Timi friend brought out a locally made pistol we previously arranged. We threatened the speed boat driver and he jumped into the river, he swum across to the bank of the river. Timi take over the steering and we drove straight to Delta State Bomadi town in Bomdi Local Government Area.”

Section 28 of the Evidence Act, 2011 defines “confession” as “an admission made at any time by the person charged with a crime, stating or suggesting the inference that he committed the crime.” Exhibit “PR16” reproduced above, constitutes a direct, positive and unequivocal admission of the part the Appellant played in the commission of the crime. He however retracted the statement at the trial and alleged that he did not make a statement.

A trial within trial was conducted, the learned trial Judge, being satisfied that the statement was voluntarily made, admitted the statement as exhibit “PR16”. The argument of the Appellant’s counsel that the confessional statement of the Accused/Appellant relied on by the trial Court to convict the Appellant was involuntarily made is of no moment, and the Appellant did not appeal against the admissibility of the document on the ruling of the trial Court on the trial within trial.

Most importantly, it is trite that where an accused person denied making a statement, trial within trial is unnecessary.

It is also the contention of the Appellant’s counsel that the confessional statement of the Appellant, Exhibit “PR16” was not corroborated. This is not correct. PW1 who is the victim of the armed robbery told the Court that the accused persons hired his boat on the 9th of December, 2012 and embarked on the journey to Agobiri the following day which was the 10th of December, 2012. He narrated to the Court how he was approached by a young man if he could take him to Agobiri which he answered yes, and has told him to pay N20,000.00 (Twenty Thousand Naira) which he agreed.

PW1 said the young man collected his phone number and called him around five o’clock in the evening and he told him he cannot go again. He said the young man gave him N3,000.00 to pay for a room in the hotel and the following day at 11:00 am he called him that they should start the journey and he carried them and started the journey. PW1 said as they were going, one of them said he wanted to ease himself and he slowed down the boat, removed the engine from the gear when the 3rd person stood up and pointed a gun at him.

While the man that negotiated with him to charter the boat removed the key from the engine of the boat. They started searching his pocket and collected the money they paid him and his phone which he bought at Twenty Thousand naira. When he wanted to disconnect the supply of fuel to the engine, one of them saw him and hit him on the neck with his hands, that was when he fell inside the river and they drove off the boat.

The law is settled beyond peradventure that a Court may convict an accused person solely on the basis of his confession even when he retracted or resiled from the confession. It is also the law that where an accused person outrightly denies making a confessional statement, the trial Court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. See Ikemson Vs State (1989) 3 NWLR (Pt.110)455.

The Court should evaluate the confessional statement, the testimony of the accused and the other pieces of evidence adduced at trial to decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it.

See Onyegbu Vs State (1994)1 NWLR (Pt. 320) 328; Dele Vs State (2011) 1 NWLR (Pt.1229) 508; Adisa Vs State (2019)3 NWLR (Pt.1660) 488 and Sale Vs State (2020) 1 NWLR (Pt.1705) page 205. ​To rely on a retracted confessional statement to convict an accused person, the Court would consider the following factors: (a) Whether there is anything outside the confession which shows that it may be true; (b) Whether the confession is in fact corroborated; (c) Whether the relevant statements of fact made in it are most likely true as far as they can be tested; (d) Whether the accused had the opportunity of committing the offence. (e) Whether the confession is possible; and (f) Whether the confession is consistent with other facts that have been ascertained and established- State Vs Musa (2020) 2 NWLR (Pt.1709) 499.

See also Fabiyi Vs State (2015) 18 NWLR (Pt.1490) 80; Okoh Vs State (2014) 8 NWLR (Pt.1410) 502 and Olude Vs State (2014) 7 NWLR (Pt.1405)89. In the instant case the corroborative evidence of PW1 confirmed in some material particulars, not only that the crime had been committed, but it was the Appellant who committed it. Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict even if retracted at the trial – Igbinovia Vs State (1981) 2 SC 5.

A confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with an offence and so when as in the instant case, the confession is free and positive, it is enough to secure conviction by the prosecution. See Ogudo Vs State (2011) 18 NWLR (Pt.1278)1 and Igri Vs State (2012) 16 NWLR (Pt.1327 522.

The argument of the Appellant’s counsel that the Accused/ Appellant is an illiterate and the statement was recorded in English language without an interpreter is of no moment, because the Accused/Appellant gave his educational background in the statement, and he cannot be said to be an illiterate, as he even signed the statement.

The issue is resolved in favour of the Respondent and against the Appellant.

On issue two, learned counsel for the Appellant submitted that the Prosecution/Respondent did not prove the offences of conspiracy and armed robbery charged against the Appellant beyond reasonable doubt. Learned counsel for the Respondent on the other hand submitted that the prosecution discharged the burden of proof beyond reasonable doubt against the Accused/Appellant by establishing the ingredients of the offences charged.

By virtue of Section 135(1) and (2) of the Evidence Act, 2011, the burden of proving that any person has been guilty of a crime of wrongful act is on the person who asserts it- Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 557; Akpan Vs State (1990) 7 NWLR (Pt.160) 101; Amala Vs State(2004) 12 NWLR (Pt. 888) 520 and State Vs Musa (2020) 2 NWLR (Pt.1709) 499 at 504.

Conspiracy is an agreement between two or more persons, acting in concert or in combination, to accomplish or commit an unlawful/illegal act or to do or to commit an act which is legal/lawful through an illegal/unlawful means. The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act by unlawful means.

See Peter Vs State (2018) 13 NWLR (Pt.1635)1 at 4 – 5; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184; Okanlawon Vs State (2015)17 NWLR (Pt.1489); Babarinde Vs State (2014) 3 NWLR (Pt. 1395) 568 and Martins Vs State (2020) 5 NWLR (Pt.1716) 58 at 65. The nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts. All that is required by way of proof is either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the offence.

There is a finding by the trial Court that from the evidence of PW1 and the confessional statement of the Accused/Appellant, it is not in doubt that the Accused/Appellant and co-accuseds conspired among themselves in tandem to pursue a common purpose to commit the crime, which is correct as shown by the evidence on the record. I fail to see any extenuating circumstances, as the learned counsel for the Appellant would want this Court to believe.

To make the picture clearer it was in evidence that Appellant and co-accuseds have agreed to hire a speed boat to Agobiri, and on the way to attack the driver and rob him of the speed boat. This operation was carried out from the evidence of PW1 and the confessional statement of the Accused/Appellant exhibit PR16. The trial Court found the confessional statement corroborating the oral testimony of PW1. I am therefore in complete agreement with the trial Court that the offence of conspiracy was well established against the Appellant.

For the offence of armed robbery to be sustained, the prosecution must establish beyond reasonable doubt the essential elements of the offence which must be proved directly, circumstantially or by the accused’s confessional statement. They are: a. That there was robbery or series of robberies; b. The robbery was armed robbery; c. The accused was the robber or one of robbers.

See Opeyemi Vs State (2019) 17 NWLR (Pt.1702) 403 at 409; Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 556; John Vs State (2019) 9 NWLR (Pt.1676) 160 at 162; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184 at 188 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 503.

In the instant case, the trial Court was right in finding that the ingredients of armed robbery were established beyond reasonable doubt against the Appellant.

Taken in context, PW1 testified to have been robbed of his speedboat, engine, money and phone on their way to Agobiri with the Appellant and co-accuseds. The robbery was armed as one the robbers pointed a gun at him. He identified the Appellant and one of the robbers at a burial ceremony as having participated in the robbery. Also PW2, a Police officer testified on the information he received on the robbery and the items lost.

So what else can be more vivid in informing this Court that the Appellant and co-accused persons were in agreement to commit armed robbery? Certainly none.

Proof beyond reasonable doubt is not proof to the hilt. Where, as in the instant case, all the ingredients of the offences charged have been established, then the case has been proved beyond reasonable doubt. See Ismail Vs F.R.N. (2020) 2 NWLR (Pt. 1707) 85 at 93; Adeyemo Vs State (2015) 16 NWLR (Pt.1485) 311; Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360 and State Vs Fadezi (2018)18 NWLR (Pt.1650)1. Issue two is also resolved in favour of the Respondent and against the Appellant.

ISSUE THREE “Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015.”

​Arguing on this issue, learned counsel for the Appellant submitted that Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015 which provided for statement of the accused to be taken in the presence of a legal practitioner of his choice or legal aid council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice was not complied with.

Secondly, that there is no where it is recorded that the Appellant was cautioned before making the alleged Exhibits PR”16”.

Relying on the case of Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025)418, it is submitted that where a statute stipulated a particular method of performing an act, that method and no other must be followed. Also referred are System Applications Products (Nig.) Ltd Vs C.B.N. (2004) 15 NWLR (Pt.897) 655; Abubakar Vs A.G. Federation (2002) 3 NWLR (Pt. 1022) 515 at 643 – 644 and Nnajiofor Vs F.R.N. (2018) LPELR -43925 CA, among others.

It is submitted that failure of the Police to follow due process in recording exhibit “PR16”, the confessional statement of the Appellant is impotent and inadmissible. The Court is urged to discharge and acquit the Appellant.

​Responding, learned counsel for the Respondent submitted that the Administration of Criminal Justice Act, 2015 is not applicable to exhibit “PR16” which was made in 2013 before the ACJA of 2015. Secondly, that ACJA 2015 is not applicable to Bayelsa State as the applicable law in Bayelsa State is the Administration of Criminal Justice Law Bayelsa State, 2019. That a statute cannot apply retrospectively except when it was to do so by clear and express terms. The Court was referred to Obiuweubi Vs C.B.N (2011) 7 NWLR (Pt.1247) 465 R.16. We are urged to dismiss the appeal.

The contention of the Appellant’s Counsel is on non-compliance with the provision of Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015. The Section reads: 1. “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken if he so wishes to make a statement; 2.

Such statement may be taken in the presence of a legal practitioner of his choice, in the presence of an officer of Legal Aid Council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice.” ​The Administration of Criminal Justice Act, 2015 came into effect in 2015. Exhibit “PR16” was made on the 22nd day of February, 2013. It goes without saying, when Exhibit “PR16” was made there was no ACJA in force. Therefore it is inapplicable to exhibit “PR16” as it cannot take a retrospective effect.

Most importantly, Administration of Criminal Justice Act, 2015 is not applicable in Bayelsa State so it will have no effect on Exhibit “PR16”. On the submission of the Appellant’s counsel on Exhibit “PR16”, that there was no cautionary words stated therein, is not correct. The cautionary words are glaringly stated therein which the Appellant signed as having understood before he made the statement. The law applicable in this case is the law in force at the time the statement was recorded and not the law existing at the time the jurisdiction of the Court is invoked. See N.U.R.T.W.

Vs R.T.E.A.N. (2012) 10 NWLR (Pt. 1307) 170 and Zubair Vs Kolawole (2019) 11 NWLR (Pt. 1682) 66.

​The Appellant’s counsel is economical with the truth as the cautionary words are clearly stated therein in Exhibit “PR16”. Even if ACJA 2015 is applicable in Bayelsa State, the contents therein are not mandatory but optional. There is no substance in the submission of the Appellant’s counsel on this issue. The Appellant’s reply brief is discountenanced for being repetitive of the main brief.

Issue three is resolved in favour of the Respondent and against the Appellant. All the issues having been resolved in favour of the Respondent, the result is that the appeal is grossly unmeritorious and it is accordingly dismissed.

The Judgment of the Bayelsa State High Court in suit No. OHC/3C/2013 is hereby affirmed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, TANI YUSUF HASSAN, JCA has availed me the opportunity to read in draft copy, the lead judgment just delivered by him.

I subscribed to the reasoning and conclusion arrived at by my noble lord and concurred with nothing useful to add thereto.

All the three (3) issues distilled by the Appellant, which encompassed the two (2) issues formulated by the Respondent in this criminal appeal, having been resolved in favour of the Respondent and against the Appellant, this appeal fails and it is accordingly dismissed as decided by my noble lord in the lead judgment

Consequently, the judgment of the lower Court delivered by Hon. Justice M.A. Ayemieye on the 24th of January, 2017 in Charge No. OHC/3C/2013 is hereby affirmed.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in draft, the leading Judgment just delivered by my learned brother, the Hon. Justice T.Y. Hassan, JCA in which he found an instant appeal as lacking in merit and was dismissed.

I agree with the resolution of the three (3) issues raised and canvassed by the Appellant, and I really do not have any useful addition to make. The appeal is totally unmeritorious and I too dismiss the appeal for the same reason ably canvassed in the leading Judgment of my learned brother.

​The appeal is dismissed by me too.

Judgment

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C. (Delivering the Leading Judgment): Appellant together with three other persons were alleged to have robbed Esman Fazubazic (PW2) of the sum of N2,000.00 and a Nokia 7250 mobile phone valued at N60,000.00 while armed with a gun. The incident took place at about 8 am on 4th April, 2004 at Pyramid Hotel and Conference Centre, Calabar. PW2 was at the material time, a guest at Pyramid Hotel and occupied room 205.

At about 7.30 am on 4th April, 2004, the day of the robbery, PW2 left his hotel room to meet with his workers downstairs and returned to his room after the meeting which lasted approximately twenty minutes. Shortly after, PW2 had a knock on the door and sought to know who was at the door and a voice retorted housekeeper. PW2 opened the door and was confronted by a man wielding a gun.

The man pushed PW2 to the ground and told him to lie on the floor then a second man entered the room and tied PW2’s hands behind his back. Both attackers asked PW2 for money. PW2 told them that he had some money in his pocket the men hurriedly searched PW2’s room for about 5 minutes after which they took PW2 into the bathroom and told him to lie face down on the floor. From the bathroom, PW2 sighted a third man outside the door of his room.

As soon as the robbers left, PW2 untied his hands and he immediately ran to the balcony of his room from where he saw his attackers walking out of the hotel premises, he raised an alarm which caught the attention of the hotel security.

On hearing the alarm, the robbers took to their heels but were hotly chased by the hotel security. In the course of the pursuit, PW3 – John Ekereobong Effiong, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5 call the name of the Appellant. The Appellant was arrested a few days later at Ugep, along with the co-accused persons.

The accused persons were arraigned and tried on an information containing a charge of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act. ​ At the trial, the prosecution called 6 (six) witnesses and tendered ten (10) exhibits. In his defence, the Appellant raised the defence of alibi and did not call any witnesses. At the conclusion of the trial, the learned trial Judge in a judgment delivered on 23rd June, 2008 found all the accused persons guilty and sentenced them to death by hanging.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the lower Court via a Notice of Appeal filed on 20th June, 2014 containing five grounds of appeal. The appeal was heard and judgment delivered on 13th May, 2015, whereat the lower Court affirmed the decision of the trial Court and dismissed the appeal.

The Appellant being dissatisfied with the judgment of the lower Court filed a notice of appeal on the 14/7/2015. The Appellant amended brief of argument was filed on the 6/11/2018 while the Respondent’s brief of argument was filed on the 12/1/2019 but was deemed properly filed on 09/05/2019.

The parties adopted and relied on their respective brief of argument at the hearing of the appeal.

From the five (5) grounds of appeal, the following four (4) issues are distilled for determination: “1. Were the Justices of the Court below right to affirm the trial Court’s finding that Exhibits B and B1, the Appellant’s statement to the police were confessions notwithstanding the Appellant’s vehement denial in the statements that he participated in the armed robbery? (“improper treatment of statements issue”) Ground 1 2.

In view of the unchallenged evidence of the Appellant that he was at Ugep on the day the armed robbery took place, did alibi not avail the Appellant as a defence in the circumstance. (Alibi issue) Ground 2 3. Is this not a proper case for the conduct of an identification parade especially against the backdrop of the conflict in the evidence of the prosecution witnesses regarding the identity of the Appellant? (“Identification evidence issue”) Ground 3 4.

Whether, on the totality of the evidence adduced at the trial, the Court below was right to confirm that the prosecution proved the guilt of the Appellant beyond reasonable doubt? (“Proof beyond reasonable doubt issue”) Grounds 4 and 5.

The Respondent adopted the issues for determination as raised in the Appellant’s amended brief of argument.

APPELLANT’S SUBMISSION On issue 1, learned counsel for the Appellant submitted that a confession by virtue of Section 28 of the Evidence Act is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime and in other to sustain a conviction, a confession must be free, voluntary, direct and unequivocal and must leave no room for doubt as to the admission of guilt by an accused which in this case neither Exhibit B nor B1 is a confession because both did not directly, positively and unequivocally admit, state or remotely suggest that the Appellant took part in the alleged armed robbery.

It was further submitted that the Appellant admitted that he knew of the plans to rob Pyramid Hotel but vehemently denied taking part in the actual robbery and that cannot be said to be an admission to committing the crime which in this case makes Exhibits B and B1, not a confession.

On issue 2, learned counsel argued that when an accused person raises a defence of alibi, he means that he was elsewhere at the time the offence was committed and since the facts constituting the defence are within the peculiar knowledge of the accused, the evidential burden of proving the defence is on the accused.

He added that an accused must raise the defence of alibi promptly and properly and in so doing, the burden of disproving the offence is transferred to the prosecution who is then under the obligation to adduce evidence in proving beyond reasonable doubt that the accused was at the scene of the crime. On this, he relied on OZAKI V. STATE (1990) 1 NWLR (PT. 124) 92, ADEDEJI V. STATE (1971) 1 ALL NLR 75, ANYANWU V. STATE (2012) 16 NWLR (PT. 1326) 221.

While referring to Exhibits B and B1, it was argued that the Appellant raised the defence of alibi at the earliest opportunity as was seen in Exhibit B, the very first statement he made to the police in the aftermath of his arrest and also the Appellant was specific as to his whereabouts which on the day of the robbery he was at a church service.

On issue 3, it was submitted that identification evidence is mainly used to show that a person charged with an offence is the same as the person who committed the offence wherein such evidence must be closely examined and received with caution as shown in the case of ABUDU V. STATE (1985) 1 NWLR (PT. 1) 55, and WAKALA V. STATE (1991) 8 NWLR (PT. 211) 552.

He added that PW2 was the victim of the offence and a regular guest at Pyramid Hotel where he claimed he was robbed in his room and then identified the Appellant and two other accused persons as the robbers meanwhile, he admitted that prior to the incident, he did not know the Appellant.

He further submitted that apart from the weaknesses in the evidence of PW2, PW3 and PW5, there are noticeable conflicts in their evidence and this raises serious questions as to the credibility of the alleged identification of the Appellant by PW2 and PW5 as no evidence was adduced by the prosecution to explain the conflicts in the evidence of the witnesses which makes the quality of identification evidence adduced by the prosecution poor.

On issue 4, learned counsel submitted that PW6 of his own volition converted a complaint of housebreaking and stealing into one of armed robbery which from the report made to the police, the incident was not perceived as armed robbery by the complainant, and even if such was the case, a case of armed robbery would have been reported at the first instance.

It was further submitted that the circumstantial evidence used to convict the Appellant is so weak and unconvincing that it seems the Appellant’s conviction was based on mere suspicion rather than hard facts. He added that mere suspicion is not sufficient enough to justify a conviction, and a suspicion however strong cannot take the place of legal proof.

RESPONDENT’S SUBMISSION Arguing on issue 1, learned counsel for the Respondent submitted that Exhibits B and B1 are confessional in nature and confession is defined in Section 28 of the Evidence Act 2011 as an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime.

He further stated that the only criteria for assessing a confessional statement is that it must be free, voluntary, and unequivocal as this criteria was met by Exhibit B and B1. Also, the Appellant throughout the trial never mentioned that he was coerced to make the statement which makes the fact that he denied participating in the robbery a non-issue. He added that the Appellant was well vast with the facts of the armed robbery at which point amounts to an admission. On this, he relied on OGUDO V STATE (2011) 18 NWLR (Pt 1278).

On issue 2, it was submitted that the defence of alibi does not avail an accused whose identity is fixed to the scene of the crime by credible witnesses like PW2 and PW5 in their statements vividly identified the Appellant at the scene of the crime on the 4th of April, 2004. He added that when the Prosecution adduces evidence which fixes the presence of the accused to the scene of the crime, this effectively destroys the alibi as he relied on the case of ADETOLA & ORS V. THE STATE (1992) 4 NWLR (Pt 233) 267 and UKWUNNENYI & ANOR V. THE STATE (1989) 3 NSCC 44.

It was further submitted that the alibi raised by the Appellant does not avail him since the police investigated and found it to be false along with the fact that the Appellant was seen at the place and time the armed robbery took place.

While relying on the case of MOHAMMED V STATE (2014) 12 NWLR (PT 1421) 207- 434 and OZAKI V STATE (1990) 1 NWLR (PT 124) 92, learned counsel defined alibi as a plea/defence where an accused person alleges that the time the offence charged was committed he was elsewhere while the onus of raising the defence is on the Appellant to do so timeously with particulars of his whereabouts at the time of the incident to enable the police investigate and confirm his assertions.

He added that though the Appellant raised an alibi early, he did not furnish the police with enough particulars to enable them confirm his assertion through their investigation.

On issue 3, learned counsel submitted that the Court below was right when it decided that the Appellant was positively identified by the Prosecution witnesses as one of the armed robbers which was made clear by the testimonies of PW2, PW3, and PW5. He added that the law states that where the identity of the accused is not in issue, there is no need for an identification parade.

It was further submitted that an identification parade should be conducted where the victim’s first acquaintance with the accused was during the commission of the crime which renders the evidence at hand explicit as a result confirms the fact that the Prosecution witnesses (PW3 and PW5) knew the Appellant before the commission of the offence.

Still on evidence adduced by the prosecution witnesses, it was also submitted that PW3s evidence is credible and tangible and suffice as an eye witness account while PW5 in his evidence identified the Appellant at the scene of the crime as person he knew before the date of the incident and even called his name as this corroborates the evidence of PW3 who identified Appellant as one of the robbers he was chasing at the scene of the crime.

He added that there is no iota of conflict on the evidence adduced by the prosecution witnesses as each separate statement elucidates what transpired at various time of the incident which when put together gives a clear picture of what happened.

On issue 4, it was contended that the prosecution had proved the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt and evidence gathered during investigation revealed armed robbery which gives the Prosecution liberty to charge for the offence of armed robbery.

It was further contended that there was no iota of suspicion as the Appellant and his cohorts were identified at the scene of crime by three eyewitnesses, two of which had a prior existing relationship with him. He added that the Appellant and his cohorts narrated the events that preceded the armed robbery and the part each of them played as confession is the strongest piece of evidence against an accused, as the trial Court rightly observed.

RESOLUTION OF ISSUES On issue no. 1, the Appellant challenged the correctness of the lower Court’s decision to affirm the finding of the trial Court to the effect that Exhibits B and B1 (Extra-judicial statement of the Appellant) were confessional in nature despite his denial herein that he did not participate in the armed robbery.

Now, Section 28 of the Evidence Act 2011 provides that:- “(28) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” Confession under Section 28 of the Evidence Act supra is an admission made at any time by a person charged with, a crime stating or suggesting the inference that he committed the crime. To sustain conviction, the confession therefore must be free, voluntary, direct and positive, whether judicial or extra-judicial, provided the Court believes it is the truth.

Therefore, once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See THE STATE VS USMAN ISAH (Supra).

The duty of the Court is to consider the circumstances under which it was given and to decide what weight to be attached to it.

I have read the judgment of the lower Court with particular reference to its findings on the status of Exhibits B and B1 as a confessional statement. At pages 219 to 220 of the record of appeal, the lower Court stated as follows:- “The evidence of PW2, PW3 and PW4 established beyond reasonable doubt that the Appellant had the capacity of committing the crime. There is also evidence outside Exhibits B and B1 both direct and circumstantial that shows its contents to be true. PW2 gave evidence that the Appellant knocked at his Hotel room door, at Pyramid Hotel, Calabar.

When he opens the door, a gun was pointed at him. This culminated in the robbery of 4th April, 2004. There is therefore overwhelming evidence from the prosecuting witnesses in corroboration of the Appellant’s statements in Exhibit B and B1. These pieces of corroborative evidence are fully set out in the judgment of the lower trial Court. Therefore, agree with the trial Judge that Exhibit B and B1 by virtue of their contents are confessional statements of the Appellant. On my own part, I have searched assiduously for any possible defence that may be open to the Appellant without success.

On the accepted facts of this case, I am satisfied that the trial Court was fully justified in convicting the Appellant based on Exhibit B and B1 as confessional statements on the offence of Armed Robbery. I shall and hereby resolve issue no. 1 against the Appellant.”

To my mind, the above set out portion of the Judgment of the lower Court runs contrary to the provisions of Section 28 of the Evidence Act which categorically defined confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. The Appellant’s statement as contained in Exhibit B and B1 did not in any way state or suggest that he committed the offence charged. He merely stated how he met some friends discussing about Pyramid hotel.

He denied going to the said hotel with the others on the day of the robbery on 4/4/2004 but that he went to Ugep on 3/4/2004. This in my view, does not constitute a confession within the meaning of Section 28 and the numerous authorities on the subject.

THE CASE OF GBADAMOSI VS THE STATE (1992) 9 NWLR (PT. 266) 465 also relied on by the Appellant is quite instructive wherein this Court per Uche Omo JSC (now of blessed memory) held inter alia by stating:- “In his judgment, the learned trial Judge held Exhibit J., which is the statement of the 2nd Appellant to the police to be a confession… What the 2nd Appellant admitted in that statement is being a party to the attempted sale of a stolen car. That is not the offence for which he was charged.

To constitute a confession a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in doing so be clear, precise and unequivocal.” See also NWEZE VS STATE (2018) 6 NWLR (PT. 1615) 197, where this Court referred to Gbadamosi case with approval in defining the nature of a statement that will constitute a confessional statement.

The lower Court seems to have erred by relying on corroborative evidence of PW2, PW3 and PW4 as a justification to agree with the view of the trial Court that Exhibits B and B1 are confessional statements even in the absence of portion therein admitting the involvement of the Appellant as one of those who went to rob PW2 in Pyramid Hotel on the morning of 4/4/2004.

This misunderstanding about what constitutes a confessional statement is further amplified in the Respondents brief of argument wherein at page 9 paragraph 35, it was submitted that:- “Elechi JCA, rightly found that the evidence of PW1 stating that the Appellant knocked at his hotel room corroborated Exhibits B and B1. The evidence was disclosed to the police immediately after the incident. PW2 had the time to interact with the Appellant before the armed robbery incidence and during the robbery.”

The above submission can only be relevant where the Appellant actually confessed to robbing, the PW2 on 4/4/2004 in his extra-judicial statement but later denies or retracts the said confession. In that regard, the search for corroborative evidence to ascertain the truth of the confessional statement before relying on it for conviction becomes necessary and not when the Appellant never in Exhibit B and B1 admitted to partaking in the offence charged.

A confessional statement made by an accused person, just like an admission in civil procedure is the strongest evidence of guilt on the part of the accused person. It is even stronger than the evidence of an eye witness because it came from “the horse’s mouth” who is the accused person himself stating that he actually committed the offence charged.

In the instant case, the particulars of the offence was that the Appellant and other accused persons, on the 4th April, 2004 at Pyramid Hotel and conference centre, Calabar, while armed with guns robbed one Esman Fasubazic of the sum of N2,000 and one Nokia handset valued at N60,000. The Appellant never admitted in his statement “Exhibits B and B1” that he participated in any robbery. Confession should be direct and positive and not circumstantial. Even the evidence of PW6, the investigating police officer stated clearly that the Appellant denied in his statement that he was among the robbers.

See BASIL AKPA VS THE STATE (2008) 4-5 SC (PT. 11) page 1.

Indeed, a confessional statement makes the work of the police and even the trial Court easy as it reduces the burden of investigation and evaluation of evidence but great caution should be exercised in assessing whether or not the extra-judicial statement of an accused person constitutes a confession especially where grievous offences are involved.

In the instant case, I hold that Exhibits B and B1 do not constitute confessional statements. This issue is therefore resolved against the Respondent.

On issue no. 2, the Appellant’s contention is that he was at Ugep on the day the armed robbery took place at Pyramid Hotel and conference centre, so he could not have been one of the culprits. That is to say that he raised an Alibi in his extra-judicial statement Exhibits B and B1.

The law is that, once an alibi is raised, the burden shifts on the prosecution to investigate the alibi. See OGOALA VS THE STATE (1991) 3 SCNJ 61.

Alibi, as is now firmly established means “somewhere else.” That is to say that the person accused of committing a particular crime was somewhere else when the crime was committed. See OZAKI VS THE STATE (1990) 1 NWLR (PT.124) 92; GACHI VS THE STATE (1965) NWLR 333; SHEHU VS THE STATE (2010) LPELR-3041 (SC) ADIO VS THE STATE (1986) 3 NWLR 714; ADEDEJI VS THE STATE (1971) 1 All NLR 75. OKOSI VS THE STATE (1989) CLRN 29 at 48; OLATINWO VS THE STATE (2013) 8 NWLR (PT. 355) 126.

An accused person who pleads alibi must of necessity furnish sufficient particulars of some. He must therefore explain his whereabout and those present with him at the material time. He must not raise the defence at large but must give adequate particulars of his whereabout at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. See FABIAN NWATURUOCHA VS THE STATE (2011) 6 NWLR (PT.1242) 170.

However, where the evidence of prosecution witnesses specifically and unequivocally pins down an accused person to the scene of the crime and says that he committed the offence, failure to investigate the Alibi by the police will not result in an acquittal of the accused person. In other words, if the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the material time, notwithstanding his claim that he was somewhere else, surely his alibi is thereby logically and physically demolished.

See MICHAEL HAUSA VS THE STATE (1994) 7-8 SCNJ 144; EMMANUEL EBRI VS THE STATE (2004) 5 SCM. 48.

In his extra-judicial statement, Exhibits B and B1, the Appellant stated that on 3/4/2004, he travelled from Calabar to Ugep and on Sunday 4/4/2004 he attended Church service at winners Chapel Ugep. However, I observe from the record that the Appellant merely stated that he went to Ugep to see his palm fruits and also attended winner’s chapel Church on Sunday 4/4/2004, he did not mention anybody that saw him or was with him in Ugep either on 3/4/2004 in the Church on Sunday 4/4/2004. As earlier stated in this Judgment an accused person must not raise the defence of alibi at large.

An accused person relying on an alibi has a duly to let the police know at the earliest opportunity where and when he was at all material times. See UDO AKPAN VS THE STATE (1986) 5 SC 301. He must give adequate particulars of his whereabouts at the time the offence was committed to assist the police to make meaningful investigation and where they fail to so investigate, it creates an opportunity of acquittal in the absence of superior evidence fixing the accused at the scene of crime.

Albeit, the PW6 in his evidence at page 51 of the record testified that to investigate the alibi raised by the Appellant in Exhibits B and B1 he took a statement from the Appellant’s father who stated that the Appellant left the house at the early hours of Sunday 4/4/2004 and not on Saturday 3/4/2004. This definitely weakens the defence of alibi raised by the Appellant to the effect that he left Calabar for Ugep on 3/4/2004.

He testified at page 51 of the record as follows:- “We brought Godwin to our station and took his statement under caution. Godwin denied the allegation and alleged that he left Calabar for Ugep on Saturday before the crime on Sunday morning. To investigate the alibi, we took statement from his father. His father told us that his son left house at the early hours at the early hours of Sunday and not Saturday on (Sic) Godwin at (Sic) alleged.”

More devastating to the defence of alibi is the testimony of PW5 which fixed the Appellant at the scene of crime at Pyramid Hotel on the said 4/4/2004. He stated in his evidence at page 48 of the record as follows:- “On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As I was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards men I went outside and called him again. He would still not answer.

He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after the first accused. They asked me if I knew him and I told them he was my friend. They told me that first accused stole from Mr. Esman’s room. I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living. I used to see first accused along Akai Street, Ikot Ishie where I was living before.

When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebabsco Hotel. On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”

The fact of the pursuit of the 1st accused with his cohorts from the hotel on the 4/4/2004 and that the PW5 saw the 1st accused and shouted his name in the course of pursuing them was also corroborated by the evidence of PW3 at page 40 of the record.

The conclusion of the matter is that, firstly the alibi raised by the Appellant was investigated by the police who contacted his father and he told them that the Appellant left his house in the morning of 4/4/2004 as against the statement of the Appellant that he left the house for Ugep on 3/4/2004. This punctured his defence of alibi. Secondly, the evidence of PW5 and PW3 fixed the appellant at the scene of crime at Pyramid hotel on the morning of 4/4/2004.

If the prosecution adduces sufficient evidence to fix the accused at the scene of the crime at the natural time, surely, his alibi is deemed logically and physically demolished. Thus, where, as against the defence of alibi raised by an accused person there is a visual identification evidence of the accused by the prosecution witness which the Court believes, such evidence will effectively destroy the defence of alibi as raised. See MICHAEL HAUSA VS THE STATE (Supra) and AFOLALU VS THE STATE (2010) 5-7 SC (PT.11) 93. Consequently, this issue is resolved against the Appellant.

On issue no.3, the Appellant’s complaint is on the need for a proper identification parade given the conflicting evidence of the prosecution witnesses regarding the identity of the Appellant.

In order to ascribe any values to the evidence of an eye witness identification of a criminal, the Court in guarding against cases of mistaken identity must meticulously consider the following issues:- 1. Circumstances in which the eyewitness saw the suspect, was it in difficult conditions? 2. The length of the time the witness saw the suspect at a glance or longer observation? 3. The opportunity of close observation 4. Previous contact between the two parties 5. The lighting conditions.

See EMMANUEL OCHIBA VS THE STATE (2011) 17 NWLR (pt.1277) 663 and ORE-OFE ADESINA (aka Alhaji) & ANOR VS THE STATE, (2012) SC (PT. 111) 114.

Where the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the Court must closely examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification vide ARCHIBONG VS THE STATE (2006) 5 SCNJ 202.

In addressing these issues, the lower Court held at pages 226 to 227 as follows:- “Also the evidence of PW5 clearly identified the Appellant at the scene of the crime. A look at his evidence will further boost the truth of the matter when said:- “As I was trying to change my clothing, I saw the 1st accused (Appellant) coming out of the Hotel. I called out to him but he did not turn towards me. He was my friend before the incident. I then went outside and called him again. He would still not answer.

He started running and I saw other security guards running after him.” “This account evidence of PW5 actually and specifically fix the Appellant at the scene of crime and further demolishes the need for any sort of identification parade. So the 3rd ingredient to be proved in an offence of Armed Robbery has been established and that the Appellant took part in the robbery at Pyramid Hotel Calabar on the 4th April, 2004. This issue no. 3 is hereby resolved against the Appellant.

The alleged contradictions of the evidence of PW2, PW3 and PW5 as adumbrated in the Appellant’s brief of argument are not material enough to demolish the case of the prosecution. In addition to that, it is noted that it is not every contradiction in the evidence of the prosecution that is fatal save where such contradiction goes to the substance and materially of a fact or facts in issue in the charge as to raise doubt in the mind of the Court. Unequivocally, such doubt must be resolved in favour of the accused.

This is not the case here and the trial Judge duly considered these contradictions before he rightly convicted the Appellant on the basis of the identification evidence given by the PW2 and PW5, this issue 3 is hereby resolved in favour of the Respondent.”

Indeed, the evidence of PW5 was clear and unequivocal with respect to his prior knowledge about the Appellant whom he saw in the hotel that morning and even called out his name but the Appellant did not turn to respond, and at a stage started running out of the hotel and he (the PW5) saw other hotel security guards running after him. ​ The PW3 also gave strength to the evidence of first knowledge of the Appellant wherein he stated in his evidence at page 40 of the record that:- “As I was running, I overheard one of our security operatives, Okoi Arikpo shouting the name “Godwin Egbe” (1st accused) as one of those who were running ahead of me.

He got on a motorcycle and they rode away.”

What is more, the PW2 who was the victim of the armed robbery in the morning of 4/4/2004 also testified on oath that the Appellant and two others were the persons who attacked him and he had known the 2nd accused person before the incident as a security staff of Pyramid hotel.

The facts as detailed above gives no room for the need to organise an identification parade given the positive recognition of the Appellant by the PW5 who had known him long before the day of the incident.

It is settled principle of criminal jurisprudence that identification parade is not obligatory where there is good and cogent evidence linking the accused person to the crime on the day of the incident. In other words, an identification parade is not required where a suspect is caught at the scene of crime or at a place so closely connected with the scene of crime or where the witnesses knew the accused person or persons.

See OGOALA VS THE STATE (1991) 3 SCNJ 61; OLAYINKA AFOLALU VS THE STATE (2010) 16 NWLR (PT.1220) 5 84.

As was held by this Court in OCHIBA VS THE STATE (2011) 17 NWLR (PT.1277) 663, it is now well established that recognition, or visual spontaneous evidence of identification in most instances is more reliable than an identification parade, and is acceptable to ground a conviction if believed by the Court. On this premise, issue 3 is resolved against the Appellant.

On issue no. 4, which deals with whether the lower Court was right to affirm that there was proof beyond reasonable by the prosecution.

Now the essential ingredients for the offence of armed robbery have been stated by this Court in a host of authorities. I wish to restate them here as follows:- (1). That these was a robbery (2). That the robbery was an armed robbery (3). That the accused person was one of those who robbed. All of the above must be provided beyond reasonable doubt before a conviction can be sustained and proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge.

See OLAYINKA AFOLALU VS THE STATE (Supra); FATAI OLAYINKA VS THE STATE (2007) 4 SCNJ 53; CHUKWUKA OGUDO VS THE STATE (2011) 12 SC (PT.1) 71.

A perusal of the record of appeal shows clearly that there is no dispute or uncertainty on whether there was robbery at Pyramid hotel on the 4th day of April, 2004 and that the robbery was an armed robbery. Evidence indeed abound in this regard. The bone of contention is the 3rd ingredient, which is, whether the Appellant herein was one of the armed robbers.

Ordinarily, it will not be out of place to conclude that resolution of issues 2 and 3 answers the question of whether there was proof of the charge of armed robbery against the Appellant but for emphasis, I need state that the evidence PW2, PW3 and PW5 which suffered little or no challenge during cross-examination points clearly to the fact that the Appellant was one of the robbers who attacked the PW2 on 4/4/2004 at Pyramid hotel, Calabar.

Evidence of PW2 is to the effect that after the robbery he was pushed into the toilet before the robbers left his room, but as soon as they left he was able to extricate himself and ran to the balcony of his room where he saw the robbers leaving the gate of the hotel and he shouted for the security men and when the robbers heard his shout they started running and the hotel security men pursued them. He was able to pinpoint the Appellant and the 2nd and 4th accused persons as the persons that attacked him in his hotel room on 4/4/2004.

PW5 was one of the security men who pursued the escaping robbers and in the course of running after them he heard the PW5 (OKOI, ARIKPO) shouting the name of “Godwin Egbe” (first accused) as one of those who were running ahead of him and he got on a motorcycle and they rode away. He further stated under cross-examination that he knew the Appellant before the day of the incident.

The testimony of PW5 is quite clear and unequivocal as to the presence of the Appellant in Pyramid Hotel on the day and time the robbery was carried out and I am inclined to reproduce the relevant portion herein below:- It reads:- “On 4th April, 2004, I was on security duty at Pyramid Hotel at the staff gate. There is another gate for visitors. As was trying to change my clothing I saw first accused coming out of the hotel. He was my friend before the incident I called out to him since but he did not turn forwards me. I went outside and called him again. He would still not answer.

He started running and I saw other security guards running after him. John Ekwere, Eno tom, Imeobong Udoh and Ronald Efa, all of the security men were running after first accused. They asked me if I knew him and I told them he was my friend. They told me that the first accused stole from Mr. Esman’s room. I was taken to Police Station where I told the IPO that first accused was my friend, but that I did not know where he was living. I used to see first accused along Akai Street. Ikot Ishie where I was living before.

When I was working with Bolaji Anani first accused told me he was schooling a college of Education (COE), Akamkpa. I also used to see first accused at Abuja Bus stop where palm wine is sold. I also used to see first accused at Beebobsco Hotel. On that day, first accused was in a green shirt and milk coloured trouser made a statement to police.”

From the above set out testimony of the PW5, it is glaring that he did not only see the Appellant at the scene of crime, he knew him before that day as a friend with whom he worked together at Bolaji Anani compound.

He even described clearly the type of clothes worn by the Appellant on that fateful day.

In order for a trial Court to determine whether the legal duty imposed on the prosecution has been duly discharged, the trial Court must consider the totality of the evidence before the Court after which the Court determines the issues as to whether or not the case against the accused person was made out or established beyond reasonable doubt. See ORJI VS THE STATE (2008) 3-4 SC 198.

From the evidence adduced by the prosecution as contained in the record of appeal, I am of the view that the prosecution proved its case against the Appellant beyond reasonable doubt and I have no cause to disturb the decision of the lower Court. This issue is also resolved against the Appellant.

On the whole, notwithstanding the resolution of issue one in favour of the Appellant, I hold that this appeal lacks merit and it is hereby dismissed.

The judgment of the Court of Appeal, Calabar Division delivered on the 13th day of May, 2015 is hereby affirmed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Oseji, JSC, and I agree with him that this appeal lacks merit. He meticulously and definitively addressed all the issues canvassed in this appeal, and I will only add a few words on the issue of identification parade. Identification parade is not a sine qua non for identification in all cases where there is other evidence leading conclusively to the identity of the perpetrators of the offence – see Ikemson V.

State (1989) 3 NWLR (Pt. 110) 455 SC, wherein this Court held that an identification parade is only essential in the following situations: – Where the victim of the crime did not know the accused before; – Where the victim was confronted by the offender for a very short time; and – Where the victim, due to time and circumstances, might not have had the opportunity of observing the features of the Accused Person.

The essence of an identification parade is therefore to enable an eyewitness, who never knew the person accused of the crime before, to pick him out from amongst other people – see Adebayo V. State (2014) LPELR-22988(SC). See also the case of Alufohai V.

The State (2014) LPELR-24215(SC), wherein this Court per Ariwoola, JSC, very aptly explained as follows – “It is trite law that identification parade is only necessary whenever there is doubt as to the ability of a victim to recognize the suspect, who carried out or participated in carrying out the crime alleged or where the identity of the said suspect or an Accused person is in dispute.

But where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender.” In other words, an identification parade becomes a necessity when there is a need to establish the identity of a suspect.

But there are many cases where an identification parade is of no use whatsoever in the scheme of things, such as when a suspect is arrested at the scene of the crime; when the suspect is well-known to the victim or witness, and when evidence adduced is sufficient to establish that the suspect is, indeed, the person that committed the crime – see Moses Jua V. State (2010) 4 NWLR (Pt. 1184) 217 SC, Bassey Akpan Archibong V. State (2006) 14 NWLR (Pt. 1000) 349 SC and Theophilus Eyisi (Alias Sunday Eyisi) & 2 Ors. V. State (2000) 15 NWLR (Pt. 691) 555 SC.

In this case, the identity of the Appellant as one of the said robbers that accosted PW2 at the Pyramid Hotel, Calabar, is not in question as PW2, PW3 and PW5 in particular, placed him at the scene of the crime on the day in question. PW5, who said Appellant was his friend and former co-worker, gave damning evidence that unequivocally identified the Appellant as one of the said robbers. Clearly, the prosecution proved its case against him beyond reasonable doubt.

It is for this and the other definitive reasons in the lead judgment, which I unreservedly adopt as mine, that I also dismiss this appeal as lacking in merit.

UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Samuel Oseji, JSC, privileged me with a copy of the draft judgment in this appeal for my scrutiny. Having gone through same, I am of the decided opinion that the appeal lacks in merit and ought to be dismissed.

The allegation against the Appellant is that he with 3 others at about 8am on 4/4/2004 at Pyramid Hotel and Conference Centre, Calabar, robbed one Esman Fazubazic, PW2, a guest at that hotel who occupied room 205, of the sum of N2,000.00 and Nokia 7250 phone valued at N60,000.00 while armed with a gun. At about 7:30 am of 4/4/2004, PW2 left the hotel room to meet his workers downstairs and returned to his room afterward. Shortly after, he heard a knock at his door that was identified as “housekeeper”. After he opened the door, he was confronted with a wielding gun.

He was pushed down and forced to lie on the floor. The 2nd man entered the room and tied PW2’s hand behind his back. The 2 attackers asked him for money and took him to the bathroom and compelled him to lie on the floor. From the bathroom, he sighted a 3rd man outside the door of his room. After the robbers ran away, he untied himself and ran immediately to the balcony where he saw his attackers walking out of the hotel premises. The alarm he raised caught the attention of the security personnel of the hotel, who chased the robbers.

In the course of the pursuit, PW3, one of the hotel security staff purportedly heard his colleague, Okoi Arikpo, PW5, call the name of the Appellant. The Appellant was thereafter arrested few days later at Ugep along with the co-accused persons.

The Appellant raised alibi in his defence but that could not avail him. The trial Court sentenced him to death by hanging with his accomplices. His appeal to the lower Court did not also succeed, hence this appeal.

This appeal thus far has passed through the crucible of the trial Court, the lower Court and that of my learned brother, whose draft judgment is in tandem with that of the 2 Courts below. These prying eyes and minds painstakingly observed the case of the Appellant and came to the woeful reasoning and conclusion that his appeal is unmeritorious.

This Court has forewarned and warned itself not to interfere in such a situation unless there is a clear and manifest case of perversity and miscarriage of justice. It is a settled position of law that this Court would rarely interfere with or disturb the concurrent findings of facts of two lower Courts except where such concurrent decisions appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced or in violation of some principles of law and procedure, then this Court would not allow it to stand. See Per OKORO, J.S.C, in AKIBU V.

STATE (2019) LPELR-47630(SC) (PP. 22-24, PARAS. C-D). I will also refrain myself from going into this futility knowing that the Appellant’s appeal deserves to be dismissed.

This appeal is dismissed and the judgment of the lower Court is affirmed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, S. C. Oseji, JSC, in this appeal and completely agree with the views on the issues for determination and the conclusion that the appeal is devoid of merit although, issue one (1) was resolved in Appellant’s favor.

For reasons elaborately set out in the lead judgment, which I adopt, the appeal is dismissed by me too.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Samuel Chukwudumebi Oseji, JSC. I concur with the reasoning, conclusions and orders therein.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below; Coram: Abdu Aboki J.C.A. (as he then was), Theresa Ngolika Orji Abadua, Ita G. Mbaba J.J.C.A. delivered on the 30th day of May, 2014, wherein the lower Court confirmed the decision of the Katsina State High Court which convicted the appellant for the offence of armed robbery and sentenced him to death with two other accused persons.

FACTS The appellant herein was the 2nd accused person at the trial Court along with two other accused persons who were charged and arraigned on two count charge of armed robbery committed on the 30th day of January, 2002 and in April, 2002.

In proof of his case at the trial Court, the prosecution called a number of witnesses in the main trial and during the trial within trial, amongst whom was PW1 who testified as it affected the Appellant herein, at pages 22-23 of the printed records thus: “Thereafter, we continued our investigation. In August, 2002, we were able to arrest the 2nd accused person and he was brought to CID office.

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I used thesame process as before and I recorded his statement and then took him before Mr. Chibok who also endorsed the statement like those of the others.”

The recorded statement of the Appellant which is referred to as Exhibit ‘B’ was confirmed by the Appellant as the statement he made to the Police when he was cross examined as DWB as seen at Page 38 of the printed records thus: “I made the statement when I was better.”

Though the Appellant later denied the said confessional statement, after a comprehensive trial within trial to determine the admissibility of the said confessional statement, the trial Court said it found no evidence to contradict the prosecution’s testimony that the confessional statement was obtained voluntarily, consequently, same was admitted in evidence. See the ruling of the trial Court at page 50 of the printed records.

The accused/appellant was convicted for the offence of Armed Robbery under Section 1 (2) (a) (b) of the Robbery and Fire arms (Special Provision) Act Cap 398 LFN 1990, by the trial Court.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the decision

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via a notice of Appeal dated 17th April, 2012 containing only the ground of Appeal thus: – “That the decision of the High Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial.”

The appellant further contended at the Court below that the two-count charge of armed robbery were not proved beyond reasonable doubt.

The Court below found no merit in the appeal and dismissed same, affirming the conviction and sentence. The appellant has now come before the Supreme Court to ventilate his grievance.

On the 5/11/2020 date of hearing, learned counsel, Dr. Adekunle Oladapo Otitoju for the appellant adopted the brief of argument filed on 14/8/2019 and deemed filed on 5/11/2020. He raised three issues for determination which are thus: – a. Whether the judgment of the lower Court affirming/upholding the decision of the trial Court is justified, without considering the adduced evidence at the trial within trial (the issue is distilled from ground 1, 5 of the ground of Appeal). b. Whether the lower Court was wrong to rely on Exhibit B the alleged confessional statement in also affirming the

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decision of the lower Court that is not reliable (This issue is distilled from ground 2 and 4 of the grounds of appeal) c. Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court. (Distilled from ground 3 of the grounds of appeal).

Learned counsel for the respondent, Emeka Obegolu Esq.., adopted the amended brief of argument filed on 27/2/2020 in which learned counsel adopted the issues raised by the appellant.

I see the Issue 3 as sufficient in the determination of this appeal and I shall utilise it as a sole issue.

SINGLE ISSUE Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court in this matter.

Canvassing the position of the appellant, learned counsel submitted that the situation presented in this case shows an exception in an appeal on concurrent finding of facts of two lower Courts when it is necessary for the Supreme Court to interfere as there was a miscarriage of justice propelling those findings.

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He cited Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175 etc.

That in the instant case, the prosecution failed woefully to prove all the ingredients of the offence of armed robbery punishable with death and so no justification for the conviction and sentence by the trial Court nor the affirmation by the Court below. That the burden of proof in a criminal matter such as the present is beyond reasonable doubt and that burden does not shift. He relied on Inusa Saidu v State (1982) 4 SC 26 at 42 etc.

For the appellant, it was contended that there was no evidence showing that the appellant participated in the alleged robbery on which the appellant was convicted and sentenced. That there was no link with the alleged robbery. He cited Udosen v State (2007) 4 NWLR (pt. 1023) 125 at 162 etc.

That it was wrong for the trial Court to act on the statements of 1st and 3rd accused person to convict the appellant and the lower Court ought not to have upheld the judgment of the trial Court.

Learned counsel for the appellant went on to submit that the reliance of the trial Court on the confessional statement of the appellant, Exhibit B was

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misplaced as the statement was not voluntarily made. He cited Inusa Saidu v State (1982) 4 SC (Reprint).

That the confessional statement, Exhibit B had no corroborative evidence outside of itself as it was even retracted. He said the Exhibit B ought to have been expunged from the record in the circumstances prevailing.

For the appellant, it was stated that the trial Court failed to seek any other evidence of circumstances which make it probable whether the confession is true and the failure of the two Courts below to follow the above principle negated the use of that confessional statement. He cited Shurumo v State (2010) 5 NWLR (pt. 1218) 65; Oseni v State (2012) 5 NWLR (pt. 415)513 at 537.

Learned Senior Counsel for the respondent submitted that this is an instance where the Apex Court should not interfere with concurrent findings of two lower Courts below as there is no manifest error apparent on the record occasioning a miscarriage of justice or a violation of some principle of law or procedure. He citedBoniface Adonike v The State (2015) All FWLR (pt.772) 1631; Arum v Nwobodo (2013) LPELR 20390. ​ That the retraction of the confessional

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statement by the appellant did not make the statement inadmissible as the law allows for an accused to be convicted on his confessional statement alone as in this case where the statement is positive, direct and made voluntarily. He relied on The State v Salawu (2011) LPELR – 8252; Igba v State (2018) 6 NWLR (pt. 1614) 44 at 58 etc.

He stated on that from the records, all the ingredients of the offence of armed robbery were clearly proved and established against the appellant beyond reasonable doubt. He referred to Eke v State (2011) 1-2 SC (pt. II) 219; The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.

In a nutshell, the appellant posits that he had no link with the charge; was not found with any form of weapon; was not arrested at the scene of crime and the available evidence is just the alleged confessional statement of a doubtful origin since he was tortured and shot on the leg before he signed the said statement, Exhibit B. That the appeal should be allowed.

On the part of the respondent, it is that a careful consideration of all the facts made available, that the totality of the evidence placed by the prosecution before the trial

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Court was enough to secure the conviction of the appellant for the offence of armed robbery. That the concurrent findings of the two Courts below were well grounded for which this Court should not interfere to disturb the findings and conclusions thereof.

In a case of armed robbery such as the one under discourse, it is incumbent on the prosecution to prove the essential elements of the offence which are as follows: – 1. That there was a robbery or series of robberies; 2. That each robbery was an armed robbery i.e., stealing plus violence with a weapon or arms 3. That the accused/appellant was one of those who took part in the armed robbery I refer to Eke v State (2011) 1-2 SC (part II) 219; Ugboji v State (2018) 10 NWLR (pt. 1627) 346; Orisa v State (2018) 11 NWLR (pt. 1631) 453 (SC); The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.

In proving or establishing the necessary ingredients above stated in a charge or armed robbery just as in any other criminal matter, the prosecution can achieve the same by the deployment of any of the following methods, viz:

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a. Direct and credible evidence; or ​b. Circumstantial  evidence, or c. The confessional statement of the accused person. See Babatunde v State (2014) 2 NWLR (Pt. 1391) P.341.

The Court of Appeal in affirming the decision of the learned trial judge which had relied in the main on the Exhibit B, the purported confessional statement of the appellant in convicting him, held thus: – “In the instant case, the evidence against the appellant as contained in Exhibit B is adequate in implicating him. A reasonable doubt which will justify an acquittal is a doubt which reasonable man might entertain not fanciful or imaginary doubt.

The evidence explains in details how Exhibit B (the purported confessional statement of the Appellant) was obtained by the police the relevant aspect of his evidence as DwB is as follows “My name are (sic) Sijaro Muhammed Dandos … I was arrested on the 17th July, 2002 at babban alyi kurna in Kano. I was arrested as I stopped to buy oranges. I was arrested by a policeman … I was not armed… I found myself in a cell at Dalla police station … I was shot on my leg by Muntari Alhassan, Aminu and five others will surround me and say I should accept what Aminu said.

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I did as I was asked. I was not in full sense because I was shot. I signed the Hausa version as directed by Aminu. I do not know what the contents of the statement are …. I can read and write Hausa. I was not asked to write my statement in Hausa. I was not allowed to read the statement but Aminu said if I did not sign, I will be shot, he said I was already shot twice some policemen brought out clubs and hit me on my legs.

They read my statement and they asked me to sign, I signed, the policemen was in Court and testified as O.C. robbery (PWC) he asked whether I was beaten and I said I was only shot, he asked whether I gave the statement voluntarily, I told him that I did not make any statement, he asked how come the statement and I said it was Alhaji Aminu who recorded the statement. He directed them to stop beating me, I signed the statement because I did not want a repeat of what I experienced”.

“Clearly what transpired at the trial within trial was ignored by the trial Court as there was need for corroborative evidence outside Exhibit B. The trial Court had held thus: – “in fact in some of the statement i.e., of the 2nd accused statement he

10

volunteered in the statement a brief history of how he started the life of a crime as a pick pocket before graduating into robbery, the Supreme Court in a number of cases have ruled that where a confessional statement is positive, unequivocal it amounts to admission and that will be adequate to ground a conviction …… it is also my candid opinion that based on the confessional statements of the accused persons as contained in Exhibit “A”, “B”, and “C”, the Court is left in no doubt that the accused persons committed the robberies of the 29th January, 2002 and the one in April of the same year, I have therefore found the Accused guilty as charged and have accordingly sentenced them to death,”

The decision of the trial Court which was anchored on Exhibit B, the confessional statement was affirmed by the Court below in circumstances which left some questions unanswered. This is because there arose the issue of the statement having been obtained by torture including a gun shot on the leg and threats on the appellant which induced him to sign the Exhibit B as his. Those facts were elicited during the proceedings at the trial within trial.

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The situation therefore brings to mind the fact that a confession is irrelevant in a criminal proceedings if the making of the confessional has been caused by inducement, threat, promise or torture having reference to the charge against the accused person proceeding from a person in authority as the case in hand thereby raising the issue if the admission of the said confessional statement was not improper and having been admitted ought to be expunged. See Inusa Saidu v State (1982) 2 SC 26 at 36.

Again, to be said is that the truth of Exhibit B was not examined by both the trial Court and the lower Court and the evidence elicited during the mini trial was enough to render the said exhibit unreliable and the situation in this case become more dire with the sole reliance on the said doubtful confession to support the conviction of the appellant.

The point is all the more crucial as there is corroborative evidence from DW5 and appellant that the appellant had wounds and blood all over him while with the police at the time Exhibit B was obtained from him and this critical piece of evidence was not challenged or controverted by the police at the

12

trial thus providing a curious scenario as to why the Court of trial believed and relied on it. This runs counter to the principle that evidence not challenged is taken as admitted by the opposing party. See Akinmoju v State (2000) 4 SC (pt. I) 64; Alarape v State (2001) 5 NWLR (pt. 205) 79; Okoebor v Police Council (2003) 12 NELR (pt. 834) 444 at 472; Dawa v State (1980) 8-11 SC 147.

It needs be reiterated that the law still remains as it is to the effect that in ascertaining the truthfulness or otherwise of a confessional statement, the Court is enjoined to seek any other evidence of circumstances which make it possible if the confession is true and in this instance that principle was not applied by either of the two Courts below and so leaves me without option than to hold Exhibit B, an unreliable piece of evidence that cannot on its own sustain a conviction. See Shurumo v State (2010) 5 NWLR (pt.1218) 65; Oseni v State (2012) 5 NWLR (pt.415) 513 at 537; Balogun v A.G.

Federation (1994) 5 NWLR (pt. 345)442.

​The respondent’s persuasive arguments are for this Court to stay its hand and not interfere with the concurrent findings of the two Courts below

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in line with the policy stance of this Court, which stands solid. However, the circumstances prevailing in this case present the exception to that general rule which propels this Court to upset those findings which special circumstances are that the findings are perverse and have led to a miscarriage of justice. See Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175; Boniface Adonike v State (2015) All FWLR (pt. 772) 1631 at 1678 – 1679; Okunade Kolawole v State (2015) 2-3 SC P. 1 at 36; Bukar Madu Aji v Chad Basin Development Authority & anor (2015) 3 – 4 SC (pt.

III) 1 at 16 – 17; Abegunde v Ondo State house of Assembly & 11 Ors (2015) 4 – 5 SC (pt. l) 1 at 21 – 22 & 25 – 26; Ogbu v State (1992) 8 NWLR (pt.259) 255; Adeyeye v State (2013) All FWLR (pt.704) 108; Akpabio v State (1994) 7 NWLR (pt. 359) 635; Ejikene v Okonkwo (1994) 8 NWLR (pt. 632)266. In the insistence of sustaining the concurrent findings of the two Courts below, the question that belies its sustenance are the fact that the findings stemmed from perversity and occasioned a miscarriage of justice. In this case, the basic principle of substantive law and procedure

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were not followed in those findings. Of note is that the ingredients of the offence must co-exist and proved by the prosecution beyond reasonable doubt in order to secure a conviction.

In the case at hand, the prosecution failed woefully to dislodge the doubt the defence implanted both at the trial within trial as to the involuntariness of the Exhibit B, the confessional statement and during the defence when the defence witnesses testified avowing that the extra-judicial confessional statement was obtained involuntarily through blood shed when appellant was shot in the leg and through oppression, inducement and threats. Those assertions were not debunked by any cross-examination. In fact, they were left unchallenged.

I shall for effect show some excerpts of what transpired at the trial Court. I agree with learned counsel for the appellant that putting the involuntariness of the confessional statement in perspective, all the accused persons had access to information about how all the confessional statements were taken and most importantly aware of the death of Mannir who was also a robbery suspect and a co-accused, but the psychological impact the information of

15

the death of the co-accused had on them particularly the appellant who was the last person to be arrested and or whose statement was taken last, who saw the extent of threat and torture wounds meted on the other accused and himself and which ultimately led to the death of one of the accused persons was taken into cognisance. The statement made by PWA is thus: – “the 1st accused statement was the first to be taken then the 3rd and then 2nd accused.

Mannir’s statement was made on the same day the statement of the 3rd accused was recorded.” The above statement was made at the trial within trial by both the prosecution witnesses and the defences witnesses that support the fact of the psychological and physical threat and that it had a psychological effect or some impact, no matter how remotely put on the statement. Pages 26-27 of the records under cross-examination, the PWA stated there was one Mannir who is not facing trial. Mannir is dead…, he died in the hospital.

We took him to the hospital… at the time he died he was under arrest… Mannir made a statement before he died. It was verbal statement… the 1st accused statement was the first to

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be taken and then 3rd and then the 2nd accused. Mannir’s statement was made on the same day the statement of the 3rd accused was recorded, it was an investigation office… yes when I was taking the statement of the accused. Pages 28 of the records of appeal cross examination of the PwB “Series of arrests were made including that of the accused person.

I know that some of the arrested people died, they died in the course of the investigation one Mannir was among those that died… it was when Mannir Hamisu who is now dead was arrested he revealed that he was together with the accused persons during the robbery … yes the accused were aware of the death of some suspect, I cannot say whether they saw the corpse or not…” Corroborating PWA and PWB above, the DWA/appellant in evidence had the following to say at pages 34 of the records of appeal: “I met some people arrested already in connection with this case… yes, I can remember one Mannir also in connection with this case.

I met him arrested at the police station. He is dead now. I know what led to his death. I met Mannir already arrested at Dala police station… he was shot on the right

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knee in my presence. He was being interrogated before he was shot… I was hanged. I was beaten and eventually shot … They threatened to shoot me as they did to Mannir and if I didn’t admit conveying Mannir with my taxi.. I do not want what happened to Mannir to happen to me.” Pages 36-38 of the records DWB had this to say “I was shot on my leg and I became unconscious…. Mannir was shot… he was not shot in my presence. I came to know when l was in the ceil and I was shown a photograph.

I was also told by the 3rd accused person… I lost my sense because I was shot…. he said I was already shot twice some policemen brought out clubs and hit me on my legs…. he directed them to stop beaten me.

I signed the statement because I did not want a repeat of what I experience (cross examination) O.C.C.I.D said they should stop slapping me, it was after that, that I signed the statement.” Pages 38 of the record, DwC had this to say “a corpse was shown to me and I was asked if I know who it was … I was also shown the 3rd accused and asked me whether I know the 3rd accused and the corpse, a paper was brought and I was forced to

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thumbprint same .. I was taken before one huge man.” It can be seen clearly that the statement of the accused persons where obtained by force through threat, under duress by inflicting bodily harm on them which resulted in death of one Mannir. The alleged confessional statement cannot stand the test of admissibility for being unreliable under this circumstance.

The accused signed the statement given to them so that the torture and beating would stop; human instinct would always find a way to preserve its existence in the glaring face of death and acceptance and signing a statement made by another would mean preservation of life at least they will not die like their co-accused who died and was buried and nothing came out of it.

Clearly, what is evident is that the exceptional circumstances that would make the Supreme Court disregard its policy of not intervening in concurrent findings have made themselves available here, leaving the Court no option than to resolve the doubts that are present in favour of the appellant in line with the decision in Yav v State (2005) 2 NWLR (pt. 917) 1 at 25; Shekete v The Nigerian Airforce (2000) 15 NWLR (pt. 692) 868 at 880-881.

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In conclusion and from the foregoing, there is merit in this appeal and I allow it. I set aside the judgment of the Court of Appeal which affirmed the decision, conviction and sentence of the trial Court.

I hereby order the acquittal and discharge of the appellant. Appeal allowed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, MARY UKAEGO PETER-ODILI, J.S.C. just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is merit in the appeal and should be allowed. I too will allow it. Appeal allowed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, MARY UKAEGO PETER-ODILI, JSC obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that, being meritorious, this appeal should be allowed.

​Learned counsel for the appellant canvassed the view that the facts of this case present an exception to the rule against non-interference with concurrent findings of facts by lower Courts. From my reading of these findings, I take the view that there is considerable force in this view.

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True, it has long been established that this Court, generally speaking, should not interfere with findings of facts by lower Courts. The reason is simple. In the first place, the trial Courts had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies.

As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence; competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. The lower Court, upon being persuaded by such findings, would endorse them as concurrent.

That is why the law takes the view that a failure in this regard would warrant the interference of this Court. See Adeye and Ors v. Adesanya and Ors [2001] 6 NWLR (pt. 708) 1; Olatunde v. Abidogun [2001] 18 NWLR (pt. 746) 712; Adeleke v. Iyanda [2001] 12 NWLR

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(pt. 729) 1; Udo v. CRSNC [2001] 14 NWLR (pt. 732) 116; Enilolobo v. Adegbesan [2001] 2 NWLR (pt. 698) 611. This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, this Court is in as good a position as the lower Courts to come to a decision. See Ebba v. Ogodo [1984] 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe [1985] 1 NWLR (pt. 2) 299, 314; Fatoyinbo v.

Williams [1956] SCNLR 274; (1955) 1 FSC 87; Ukatta v. Ndinaeze [1997] 4 NWLR (pt. 499) 251, 263. This explains the prescription that this Court will also interfere with findings of facts where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious. See Atolagbe v Shorun (1985) LPELR-592 (SC) 31; C-D.

Such a perverse finding is a finding of facts which is, merely, speculative and is

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not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge. See Iwuoha and Anor v. NIPOST and Anor (2003) LPELR -1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. [1985] 3 NWLR (pt. 13) 407.

In all then, a decision is said to be perverse: (a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) When it has occasioned a miscarriage of justice. See Missr v. Ibrahim [1975] 5 SC 55; Incar Ltd. v. Adegboye [1985] 2 NWLR (pt. 8) 453; Atolagbe v. Shorun [1985] 4 SC (pt. 1) 250, 282. That is the fate of the concurrent findings in the instant appeal.

As the leading judgment has demonstrated, the concurrent findings of the lower Courts are perverse. They have, in fact, occasioned a miscarriage of justice, hence, the need for the interference of this Court. See Akpabio v State [1994] 7 NWLR (pt. 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt. 632) 266; Kolawole v State [2015] 2

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-3 SC 1, 36, Adonike v State [2015] All FWLR (pt. 772) 1631, 1678; Ogbu v State [1992] 8 NWLR (pt. 259) 255.

It is for these, and the more detailed reasons in the leading judgment that I too shall enter an order allowing this appeal. I abide by the consequential orders in the leading judgment. Appeal allowed.

EJEMBI EKO, J.S.C.: The evidence on which the two Courts below sustained the conviction and sentence of the appellant for armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 LFN 1990 was the alleged confession of the appellant contained in Exhibit B. At the trial, the appellant stridently protested and disputed the voluntariness of the making of the said Exhibit B. He led credible and undisputed evidence that the said confession was extracted in the most brutally dehumanizing and oppressive manner.

The particulars of the brutality include the facts that he was shot on the hand and leg by the Investigating Police Officer (IPO) in order to break him down to confessing the alleged armed robbery offence. He became unconscious as a result. Thereafter the IPO forcibly prevailed on him to

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append his signature to the document containing the confession – Exhibit B.

At the mini trial, to determine the voluntariness of the confession, he maintained the posture. But his evidence remained the only lone voice in the wilderness. He testified in his defence. At page 79 of the Record, he gave graphic details of the police brutality to his person and to others. The DW.5, Babangida Bagide, who was a fellow in-mate in the detention cell at the material time corroborated the appellant as DW.3, in every materia particular on the Police brutality.

While the appellant as the DW.3 was not at all cross-examined on the adverse evidence; the DW.5 was not discredited by the cross-examination.

Apart from Exhibit B, no evidence linked the appellant to the alleged armed robbery. No eye witness identified and linked the appellant to the said armed robbery. The situation prompted the trial Court to ask pertinently: whether considering the evidence before the Court, the Accused could be linked to any or all the robberies? On this retortion, it found that based on the confessional statement, Exhibit B, the Court was left with no doubt that the appellant, the

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Accused person, committed the robberies of 29th January, 2002 and one other in April of the same year. The appellant, ex facie the record, was not charged with any robbery that took place on 29th January, 2002. Count 1 alleged robberies of 30th January, 2002. Count 2 alleged that in April, 2002, one Hassana Bishir Babba was robbed of N250,000.00 and gold necklace.

Per contra of count 1, the PW.2 testified to robbery of 29th January, 2002. The doubt created thereby should have ordinarily been resolved in favour of the accused person. However, notwithstanding this reasonable doubt the two Courts below persisted in their concurrent perversity to convict the appellant on count 1.

On count 2, the PW.3 and PW.4 do not seem to be ad idem on the ownership of either the N250,000.00 or the gold necklace. The PW.4, Hassana Bishir Babba (at pages 68 – 69) did not say that the money and the gold necklace belonged to her, as count 2 loudly asserted. The PW.3 testified (pages 67) that the N250,000.00 and the gold necklace were “in a bag belonging to my sister”. There was no specificity of who the “my sister” was.

The Court of law enjoined by the Evidence

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Act to sustain conviction of an accused person of an alleged offence only upon proof beyond reasonable doubt must by law, to sustain conviction of an accused person for a criminal offence act only on empirical evidence and not on mere intuition or hunches. I agree with Georgewill, J.C.A., that there can be no conviction for a criminal offence on Court’s perception of morality alone without legal evidence. See UGOCHUKWU v. FRN (2016) LPELR – 40785 (CA).

Now coming to the appellant’s conviction based on Exhibit B – the confession. The law is trite that the accused person can be convicted on his confession alone: OFORDIKE v. THE STATE (2019) LPELR – 46411 (SC). However, since R. v. SKYES (1918) 8 C.A.R where the accused person disputes the alleged confession and/or retracts it, the Courts insist on the need to test the confession by considering other evidence outside the confession that attest to the truth of the making of the confession.

One test, among others, is whether the confession is consistent with other facts that have been proved and ascertained. See ALARAPE v. THE STATE (2001) 5 NWLR (pt. 705) 79.

The two Courts below concurrently found that the

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Exhibit B was confessional and that the appellant made it. But they however, shut their eyes to other undisputed facts suggesting that the confession was not only a sham but also that it was extracted oppressively. English Courts define oppression, particularly as regards the mode of extracting a confession, as improper and detestable wickedness. See R. v. PRIESTLEY (1965) 51 Cr. App. Rep. 1; R. v. PRAGER (1972) 1 ALL E.R. 1114; R. v. FULLING (1987) 2 ALL E.R. 65 at 69.

Evidence abound attest to the oppressive manner the alleged confession in Exhibit B was extracted from the appellant by the PW.1. At pages 36, 79 and 81, he testified that he was shot on the leg by the PW. 1 which made him unconscious. Thereafter he was surrounded by six (6) Policemen (including the PW. 1) who severally shot and killed one other suspect in the cell – one Mannir, to demonstrate to the appellant that they meant business. They asked him to sign the statement, Exhibit B. The appellant succumbed and appended his signature to Exhibit B.

The signing of Exhibit B, which made the appellant the author of Exhibit B, cannot in the circumstance be said to be voluntary. Not at all.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The DW.5 heard the PW. 1 threaten the appellant – putting it to the appellant that he (appellant) would tell the truth if they took him upstairs. The PW.1 took the appellant upstairs. Shortly, the DW.5 heard gun shot and the PW. 1 brought the appellant back with wound on the hand. The leg was bleeding profusely and blood was all over appellant’s gown and trousers. That the PW.1 executed his threats is therefore “res ipsa loquitur”. The DW.5 attended to the appellant to stop the bleeding. The PW.1 callously denied the appellant.

In the perverse judgment of the trial Court, affirmed by the Court of Appeal (the lower Court), the trial Judge did not, albeit properly evaluate the material evidence of the appellant (the DW.3) corroborated by the DW.5. On these material pieces of evidence that the prosecution failed to cross-examine the DW.3 and DW.5 and/or discredit them, there were ample evidence that Exhibit B was obtained in a manner consistent with very “improper and detestable wickedness”.

Like Pontius Pilate, the two Courts below decided to look the other way and unfortunately endorsed the most detestable and reprehensible Police brutality. While

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the said Courts concerned themselves only with Exhibit B being relevant to the facts in issue (Section 29(1) of the Evidence Act), they clearly compromised Subsections Sections (2) & (3) of the same Section 29 of the Evidence Act.

The provisions of Section 29(1), (2) & (3) of the Evidence Act, 2011 are herein reproduced, to wit – 29.(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section. (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, if is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable

30

doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section. (3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to so prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this Section.

The evidence of the DW.3 and DW.5 neither challenged nor discredited had seriously indicted the PW. 1 in the manner he had oppressively and callously extracted the confession in Exhibit B from the appellant. That made Exhibit B inadmissible having been made involuntarily. Section 29(2) of the Evidence Act.

Yes, the lower Court at page 173 re-stated the law correctly when they held – A free and voluntary confession of guilt, direct and positive, and if duly made and satisfactorily proved, is sufficient without any corroborative evidence so long as the Court is satisfied as to the truth of the confession (can sustain conviction). However, in view of the un-discredited and unchallenged

31

evidence of DW.3 and DW.5, which the trial Court failed to properly evaluate, the lower Court failed woefully to be satisfied that the trial Court did exercise its discretion judicially and judiciously in holding that the confession in Exhibit B was free and voluntary. It was not enough to hold that the confession was positive and direct. What makes a positive and direct confession an admissible legal evidence against the accused person is the fact that it was made freely and voluntarily.

No doubt the evidence of DW.3 and DW.5, neither challenged nor discredited, had cast reasonable doubt on the prosecution’s case that the appellant voluntarily confessed to the offences alleged against him. The appellant was in the circumstance entitled to the benefit of the doubt. The summary of all I have been labouring to establish is that the concurrent findings of facts on which the appellant was convicted were perverse, resulting in substantial miscarriage of justice to the appellant.

I therefore support, endorse and adopt the lead judgment just delivered by my brother, MARY UKAEGO PETER-ODILI, J.S.C. There is substance in the appeal.

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The appeal is hereby allowed. The concurrent decisions of the two Courts below on which the conviction of the appellant of the offences he was prosecuted and/or tried are hereby set aside. The appellant shall be and is hereby acquitted and discharged, and that shall be the order of the trial Court.

This decision is not complete unless an order is made directing the relevant prosecutorial authorities to immediately investigate and prosecute if necessary, the circumstances of the brutality to the appellant by the PW.1. All the Police Officers responsible for the alleged shooting and killing of one Mannir in the Police Cell shall also be brought to book.

The counsel for the respondent, Emeka Obegolu, Esq., is hereby directed to convey the duly certified copies of this judgment to the Inspector-General of Police and the relevant State authorities including the Attorney-General and Commissioner of Police of the State. The Appellant’s Counsel, Dr. Adekunle Oladapo Otitoju shall collaborate with the respondent’s Counsel to ensure that the order is effectively carried out.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, MARY

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UKAEGO PETER-ODILI, J.S.C., just delivered and I unreservedly agree that this appeal be allowed on the reasons and conclusion reached by him.

The Appellant with other 2 accused persons was charged with armed robbery committed on 30/1/2002 and in April, 2002 respectively. The voluntariness of the Appellant’s confessional statement was tested by a trial within trial and same was admitted as being made voluntarily. After the trial, the Appellant was convicted as charged and on his appeal to the lower Court, he lost same. Appealing to this Honourable Court, he formulated these issues for determination, adopted by the Respondent: 1.

Whether the judgment of the lower Court affirming/upholding the decision of the trial Court is justified, without considering the adduced evidence at the trial within trial. 2. Whether the lower Court was wrong to rely on Exhibit B, alleged confessional statement in also affirming the decision of the lower Court that is not reliable. 3. Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I shall sum up the three issues into one thus: Whether by the entire evidence and circumstances of this case, the lower Court was right in affirming the decision of the trial Court.

The grouse of the Appellant in this appeal is that the prosecution could not prove one of the ingredients of armed robbery, to wit; that the Appellant participated in the said armed robbery. Thus, this calls for the overturn of the concurrent findings of the 2 Courts below.

For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt: (i) That there was a robbery or a series of robberies, (ii) That each robbery was an armed robbery, (iii) That the appellant was one of those who took part in the armed robberies. See Per CHUKWUDIFU AKUNNE OPUTA, JSC in SAMUEL BOZIN V. THE STATE (1985) LPELR-799(SC) (P. 6, PARAS. B-D).

To prove that the Appellant participated in the armed robbery and since there was no any other evidence available, the prosecution relied on the induced confessional statement of the Appellant. Therein, the Appellant alleged he was tortured and shot on the leg before he was induced to sign Exhibit B. The trial

35

within trial also brought out these facts, yet it was ignored and glossed over by the lower Court.

It is settled law that for an inducement, threat or promise to make a confessional statement irrelevant and therefore inadmissible, two conditions must be present (i) it must have reference to the charge against the defendant; and (ii) the defendant should believe that by making the statement, he would gain advantage and avoid evil even if temporarily. A confessional statement becomes involuntary, if the statement could not normally have been made but for the “inducement, threat or promise” emanating from a person in authority.

This was revealed by the statement of the Appellant that he was induced and threatened by the Police into signing Exhibit B. A statement of inducement by a person in authority was held inadmissible in HASKE V. QUEEN (1961) LPELR-25081(SC).

It is glaring that the Appellant was threatened, shot at the leg and induced into making and signing Exhibit B, hence it was wrong for the lower Court to rely on that statement to convict the Appellant without circumspection. Based on the foregoing therefore, the Appellant is hereby discharged

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and acquitted. I abide by the decision and conclusion reached by my learned brother that the appeal is allowed.

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Judgment

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment) : The instant appeal is against the judgment of the High Court of Justice Oyo State sitting in Ibadan in SUIT NOS: I/103C/2016 BETWEEN: THE STATE AND (1) HAMMED ALANI (2) WAHAB LATEEF (3) ABIOLA IFEDAYO delivered on the 25th day of June, 2021.

The Appellant who was the 2nd Defendant at the trial Court was along with two others arraigned, tried and convicted on a two Count Charge of Conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Vol. 14, Laws of the Federation of Nigeria, 2004.

A summary of facts leading to this appeal is that the Appellant, his co-defendants and some others now at large while armed with about three cut-to-size locally made pistol robbed one Toyin Olasunkanmi (PW1) at her shop where she sells cement and carted away some of her valuables including money. The Appellant and his gang members also robbed one Badmus Mohammed Taorid Olaseu PW2 at gunpoint and went away with valuables such as laptops, phones and other items he sold.

In its judgment at page 110 of the record, the trial Court concluded as follows: “From the foregoing therefore, I resolve the two issues in favour of the prosecution and I hold that the prosecution has proved the guilt of the Defendants beyond reasonable doubt and I convict them of Conspiracy to commit Robbery and Armed Robbery. Furthermore, each of the Defendants is sentenced to 10 years imprisonment on the 1st count of conspiracy and 10 years imprisonment on the 2nd count of crime.

The two terms are to run concurrently.” Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 13th August, 2021 (See pages 111-117 of the Record). The Record of Appeal was transmitted on the 27th of September, 2021. The Appellant transmitted Additional Record of Appeal on 6th January, 2022 which was deemed as properly compiled and transmitted on the 26th of January, 2022.

Parties filed their respective Briefs of Argument as follows: 1) Appellant’s Brief of Argument settled by Olusola Olorunfemi Esq., was filed on the 9th of November, 2021. 2) Respondent’s Brief of Argument settled by Yusuf Olatunji Ogunrinde was filed on 9/12/2021. On the 26th of January, 2022 when this appeal was argued, learned counsel representing both parties adopted and relied on their respective Briefs of Argument. While Appellant’s Counsel argued in favour of allowing the appeal that representing the Respondent submitted in favour of its dismissal.

Appellant’s Counsel formulated a sole issue for determination from the five grounds of appeal as follows: “Whether having regards to the inconsistencies, speculations, distractions, material contradictions and abundant doubts in the case put forward by the Respondent the decision of the lower Court is not unreasonable.” (Grounds 1, 2, 3, 4, 5 of the Notice of Appeal) Learned Counsel to the Respondent for his part also formulated the following lone issue for determination: “Whether having regards to the circumstances of this case, the totality of the evidence on record and the position of the law, the lower Court was right to have held that the prosecution was able to prove the offences of conspiracy to commit Armed Robbery and Armed Robbery against the Appellant”. (Grounds 1 to 5 of the Notice of Appeal) I agree with parties that only one issue has arisen for determination in this appeal.

The issue for determination as modified by me is: “Whether the trial Court was right when it held that the Respondent proved the offence of Criminal Conspiracy and Armed Robbery against the Appellant beyond reasonable doubt.” Appellant’s Counsel submitted it is now elementary law that the burden of proof in criminal cases squarely rest on the Prosecution who must prove its case beyond reasonable doubt. He commended to us JUA VS.

THE STATE (2007) LPELR-8759, ADEOTI VS.THE STATE (1998) 7 SCNJ 83, MUSA VS.THE STATE (2014) LPELR-24026, NASIRU VS.THE STATE(1999) 2 NWLR (PART 589) 89, OFORLETE VS.THE STATE(2000) FWLR (PT. 12) 2081 AT 2097 PARA H AND OSENI VS.THE STATE (2012) 5 NWLR (PT. 1293) 351 AT 385 PARAS B-D to support his submission. He advocated that the offence of Armed Robbery (2nd Count in the Amended Charge) be considered before the 1st Count (Criminal Conspiracy) and relied on the case of LUKMAN OSETOLA & ANOR VS. THE STATE (2012) 6 S.C (PT.

IV) 148 ​where the Supreme Court held that the proper approach in an indictment which contains conspiracy charge and the substantive charge is to first deal with the latter, that is, the substantive charge and then proceed to see how far the Conspiracy Count has been made out.

In respect of the offence of Armed Robbery contrary to and punishable under Section 1 and 2(a) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation of Nigeria 2004, learned Appellant’s Counsel submitted that the Respondent had a duty to prove that there was robbery or series of robberies; that the robbery or each robbery was an Armed Robbery; and, that the Appellant was one of those who took part in the Armed Robbery. He craved in aid of his submission BOZIN VS.

STATE (1985) 8 NWLR (PT. 8) PAGE 465 AT 469, ARUNA VS.THE STATE (1990) 6 NWLR (PT. 155) PAGE 125 AT 135, OKOSI VS. ATTORNEY-GENERAL BENDEL STATE (1989) 1 NWLR (PT. 100) PAGE 642, NWACHUKWU VS.THE STATE (1985) 1 NWLR (PT. 218), ANI VS.STATE (2003) 11 NWLR (PT. 83) PAGE 142 AND MORUFU BOLANLE VS.THE STATE (2005) 1 N.C.C. 342 AT 354. Again, he commended to us the cases of OKOSUN VS. A.G. BENDEL STATE (1985) 11 SC 133, NWACHUKWU VS.THE STATE (1985) 3 NWLR (PT. 11) 218 AND ADEKOYA VS.

STATE (2012) 3 SC 36 PAGES 56-57 PARAS 15-25 to support his submission that Armed Robbery is stealing plus violence, that the suspect must steal something capable of being stolen and that any person in company of a person armed at the time of the robbery is also guilty of Armed Robbery. It is further his submission that evidence adduced to prove the guilt of the accused may come through eye witness, the confession by the accused or circumstantial evidence that irresistibly point to the accused person as the perpetrator of the crime. He craved in aid of his submission the case of STATE VS.

GAMBO (2019) 2 NWLR (PT. 1655) 117 AT 138. On the evidence adduced by the prosecution in support of his case, he submitted same was full of material considerations. He urged us to note that where there are contradictions or lack of sufficient evidence the benefit of that doubt must be resolved in favour of the accused. He commended to us the case of IBEH VS. THE STATE (1997) 1 NWLR (PT. 484) 632 AT 661 (SC). He specifically referred us to the evidence of PW1, PW2, PW3 and PW4 which he said were materially contradictory.

He cited instances of such contradictions in Paragraphs 4.10-4.18 on pages 14 to 18 of his brief. He submitted that even though it is not every contradiction that will lead to reversal of judgment but where the contradictions are material (as in the instant appeal) same will occasion reversal of the judgment.

It is his further submission that none of those that allegedly arrested the Appellant and his co-defendants was called to testify during trial, that no eyewitness other than PW1 was called, that the Respondent failed to prove the ingredients of Armed Robbery beyond reasonable doubt, that no Motorcycle or particulars of motorcycle were presented before the lower Court to show that Motorcycles were recovered from the Appellant and his co-defendants and, that the evidence of the Appellant and his co-defendants that they do not know each other before being arrested was not discredited by the Respondent.

He observed and urged the Court to tow his line of reasoning which is that the Appellant and his co-defendants are victims of circumstance by being in a particular place at the wrong time.

Counsel urged us to note that apart from the cut-to-size locally made pistol admitted by the lower Court as Exhibit 1, there is no other tangible evidence that there was Armed Robbery on the day of the incidence; and, that there is doubt that the locally made cut-to-size pistol that was admitted in evidence was recovered from the Appellant and his Co-defendants since none of the people present at the place of their arrest gave evidence that at the time of their arrest, they were seen with guns or that guns were recovered from them. He cited ASUQUO WILLIAM VS.

THE STATE (1975) 9 – 11 SC to support his submission that where there is inconsistency in the evidence of a witness, the evidence of that witness shall be treated as unreliable. He also cited ARISA VS. THE STATE (1988) 7 S.C. (PT. 1) 52 AT 60-61 PARA 40 AND OMINI VS.

THE STATE (1999) 9 S.C. 1 AT 11 to support his submission that evidence found to be unreliable ceases to be relevant evidence. ​ He stressed that substantial part of the evidence of PW1, PW2, PW3 and PW4 is hearsay evidence; that Courts have been enjoined not to pick and choose which of the evidence of the Respondent’s witnesses to believe or disbelieve, that the trial Court was wrong to have picked and chosen which part of the evidence of the Respondent it believed.

He further submitted that the evaluation of evidence and conclusion arrived at by the lower Court is perverse and should not be allowed to stand. He relied on BALOGUN & ORS. VS. AKANJI & ORS (1988) 2 S.C in support of his submission. On the meaning and essential ingredients of Conspiracy, Counsel commended to us OYEDIRAN VS. THE REPUBLIC (1967) N.M.L.R. 122 AT 127-128, THE STATE VS. ADEMOLA BELLO & ORS (1989) 1 C.L.R.N. 377, KENNETH CLARK & ANOR. VS. THE STATE (1986) 4 NWLR (PT. 35) 381 AT 395, SAMSON AIGBE & ORS. VS. THE STATE (1976) 9-10 SC 77.

He submitted that conspiracy is generally a matter of inference from the collateral circumstances of the case and cited ERIN VS. THE STATE (1994) 5 NWLR (PT. 364)352 AND OWOCHE VS. REPUBLIC (1966) ALL NLR 82 to support his submission. ​ He further drew our attention to the point that the Appellant’s oral evidence before the lower Court is that his Confessional Statement was not voluntary and he did not know his other Co-defendants until when they met in Court and that he had no gun battle with the police.

He urged us to note that there is nothing outside the Appellant’s Confessional Statement to show that it is true; that the Confessional Statement is not corroborated as far as it can be tested, that the facts stated therein are not true, that the Appellant had no opportunity to commit the offence and that the confession of the Appellant is not possible let alone consistent with other facts proved at the trial. He relied on the case of KAREEM VS. FRN (2002) 4 SC (PT. 11) 42 and urged us to note that there is no independent testimony which connect the Appellant with the crime.

He cited OHUKA VS THE STATE (1988) 7 SC PART II 25 AT 41 – 42 to support his position. On a final note, he argued that there is no corroborative evidence to support the Appellant’s confessional statement which he retracted at the trial and that in the absence of such corroboration the trial Court was wrong to have relied on it to convict him.

He urged us to resolve this issue in favour of the Appellant. ​ Arguing per contra, learned Counsel to the Respondent submitted and urged us to hold that the trial Court was right when it held that the Respondent proved the offence of Criminal Conspiracy and Armed Robbery against the Appellant. He conceded to the Appellant’s Counsel’s submission that the Respondent had the duty to prove its case against the Appellant beyond reasonable doubt to be able to secure his guilt and/or conviction and commended to us SECTION 135 (1), (2), (3) OF THE EVIDENCE ACT, 2011, MBANG VS.

THE STATE (2013) ALL FWLR (PT. 674) 102 AT 116, PARAS B-E AND ONAFOWOKAN VS. THE STATE (1987) 7 SC (PT. 11) 198 AT 202, PARAS 20-35. It is however his position that in proving its case, the Respondent is not bound to call a host or community of witnesses and referred us to Section 200 of the Evidence Act, 2011.

He submitted that proof beyond reasonable doubt only means proof of an offence with the certainty required in a Criminal trial, that the certainty is that the offence was committed, which is established by proving the essential ingredients of the offence and that it is the person charged that committed the offence.

He emphasized to us that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and, that if the evidence is strong against an accused person as to leave only a remote probability in his favour, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. He cited MICHAEL VS. THE STATE (2008) LPELR-1987, 1 AT 4 to support his position.

He urged us to note that the gravamen of the Appellant’s appeal is not whether or not the offence was committed, but that it was not proved by the Respondent that the Appellant was the one who committed the offence of conspiracy and Armed Robbery levied against him. Counsel placed much emphasis on the point that the prosecution can discharge the burden of proof on it by the evidence of eye witness, confessional statements, circumstantial evidence (where direct or confessional statements are lacking), and, by admission by conduct of the accused person. He cited OGOGOVIE VS.

STATE (2016) LPELR-40501 (SC) to support his point.

He noted that the evidence of PW1 (Toyin Olasunkanmi) and PW2 (Badmus Mohammed Taorid Olaseu) are evidence of eyewitnesses, that Exhibits B1, B2, B3, S1, S2 and S3 are the Confessional Statements of the Appellant and his two other Co-defendants, that the evidence of PW3 (Kunle Azeez) and PW4 (Inspector Lawal Mutiu) together with Exhibits A1, A2, 1, 2 and 3 (Statements of PW1, PW3, cut to size pistol, unregistered Boxer Bajaj Motorcycle and Bajaj Motorcycle with Registration Number TTN 635 NC respectively) all constitute circumstantial evidence which link the Appellant and his fellow accused persons with the commission of the alleged crime.

Regarding the offence of Armed Robbery, Counsel submitted it is the duty of the Respondent to prove that there was robbery or series of robberies, that the robbery was an armed one and, that the Appellant was the Robber or one of them. He cited OGOGOVIE VS. STATE (supra) to support his position. He noted that in proving the ingredients of Armed Robbery, the Respondent called four (4) witnesses i.e., PW1-PW4 and tendered eleven (11) Exhibits i.e. Exhibits A1, A2, B1, B2, B3, S1, S2, S3, 1, 2 and 3 respectively.

That the Respondent’s four (4) witnesses and eleven (11) Exhibits all point to the irresistible conclusion that the Appellant was one of the Armed Robbers that operated on 05/21/2015 in the cement shop of PW1 at Arowojeka, Olode Area, Ibadan, Oyo State. He drew our attention to the fact that the Confessional Statements of the Appellant and his co-defendants i.e., Exhibits B1, B2, S1, S2 and S3 established his guilt and, that the Respondent’s four (4) witnesses and eleven (11) Exhibits are explicit and sufficient to convict the Appellant without blinking an eye.

On the definition of Confessional Statement, Counsel relied on SECTION 28 OF THE EVIDENCE ACT 2011 AND OLAOYE VS. STATE (2018) LPELR-43601 (SC) per AMIRU SANUSI, JSC (PAGES 15-16, PARA. A). He reproduced the Confessional Statements of the Appellant and his Co-defendants made at the SARS office, Dugbe in Ibadan on 07/11/2015 at pages 9-12 of his brief to emphasize his point that the Confessional Statements are unassailable and directly linked the Appellant to the crime.

He urged us to note that other than the Confessional Statements of the Appellant and his co-defendants, Exhibits A1, A2, 1, 2 and 3, the Statements of PW1, PW2, PW3, Pistol and 2 Motorcycles recovered from the Appellant and his co-defendants after their arrest constitute independent evidence and sufficient ground to convict them. He submitted that the testimonies of PW1 and PW2 are evidence of eye Witnesses which suffice as direct evidence.

He further submitted it is settled law that the fact that an accused person objects to the admissibility of a Confessional Statement on the ground of involuntariness does not make that statement unreliable and inadmissible. It will only require the trial Court to conduct a trial-within-trial to establish the veracity of the Statement and its voluntariness or otherwise. He cited OBIDIOZO & ORS VS.

STATE (1987) LPELR – 2170 SC per ABDUL GANIYU OLATUNJI AGBAJE JSC AT PAGES 19 – 22, PARA C AND MAIWADA VS STATE (2015) LPELR -40413 CA per HABEEB ADEWALE OLUMUYIWA ABIRU JCA PAGE 31 PARAS A – F to support his submission. He pointed out that a trial-within-trial was conducted before Exhibits B1, B2, B3, S2 and S3 were admitted in evidence and cited OKONKWO VS STATE (1998) 8 NWLR (PT. 561) 210 AND OLAOYE VS.

STATE (2018) LPELR-43601 SC to support his position on the trial-within-trial. ​ On his submission that an accused person can be convicted solely on his voluntary Confessional Statement without corroboration, he referred to OLAOYE VS. STATE (supra) and reiterated the point that the trial Court, in convicting the Appellant for Armed Robbery and Conspiracy to commit Armed Robbery, considered all the evidence adduced by the Respondent’s Witnesses and the circumstance surrounding the Appellant’s arrest before finding him guilty and sentencing him accordingly.

He analysed the evidence of PW1 in Paragraphs 4.34 – 4.35 on pages 17 to 18 of his brief; the evidence of PW3 in Paragraphs 4.40 – 4.41 on pages 19 to 20 of his brief and, that of PW4 in Paragraphs 4.42 -4.43 on pages 20 to 21 of his brief. He cited ALABI VS. STATE (1993) 7 NWLR PART 307 PAGE 511 AT 523 PARA F-H to support his submission that the Respondent’s evidence during trial established that there was Robbery; that it was carried out with the use of offensive weapon and that the Appellant participated in the Robbery. He cited GALADIMA VS.

STATE (2017) LPELR – 43469 (SC) per OLUKAYODE ARIWOOLA, JSC (pages 28 – 29, Paras F-C) to support his submission that where there are material contradictions and inconsistencies in the evidence of the Prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. He submitted there are no contradictions in the evidence of the Respondent’s witnesses and if any contradiction exists, they are not material to the fact in issue.

He submitted that it is not the duty of the complainant/victim to describe the type/make of gun used in robbing him and that all the law requires is proof that the Appellant was actually in possession of arms or ammunition during the robbery. He further submitted that it is not every minor discrepancy or inaccuracy in the evidence of Prosecution witnesses that amount to contradiction. He cited OLUSEGUN VS. STATE (2020) LPELR – 51156 (CA) to support his submission.

He also emphasized that the trial Court evaluated the oral evidence of the Appellant and found same to be unmeritorious before relying on his Confessional Statements. ​ On the defence of alibi raised by the Appellant, he argued that same is an afterthought. On the meaning, nature, time to raise the defence of alibi and duty on the accused raising the defence of alibi, he relied on OKOLO OCHEMAJE VS. STATE (2008) 10 SCM PAGE 103 AT 107.

He stressed that the Appellant did not mention anything relating to alibi to PW3 and PW4 (Investigating Police Officers) or any other officer on 05/11/2015 when he was arrested; and, that the Appellant also failed to afford the Police the opportunity to investigate his defence of alibi as required by law. He cited ALIU VS. STATE (2015)2 NWLR (PART. 1442) 86 D – E to support his submission that the phrase reasonable doubt which will justify an acquittal is a doubt based on or arising from evidence or lack of it. That it is a doubt which a man or woman may entertain.

It is not a fanciful doubt, not an imaginary doubt, but a doubt as would cause a prudent man to hesitate before acting in matters of importance to themselves. He argued that the guilt of the Appellant and his co-defendants were not premised solely on their Confessional Statements but on other factors such as eyewitness account and cited STATE VS. YAHAYA (2019) LPELR – 47611 (SC)Per MARY UKAEGO PETER-ODILI, JSC (pages 36 – 38, Paras F – E) on the importance and effect of identification evidence.

He submitted the prosecution is not bound to call a host of witnesses and that where the Prosecution failed to call a particular witness; nothing stops the defence from calling him. He also cited IGBO VS. THE STATE (1975) 9 – 11 S.C 129 – 136, ONAFOWOKAN VS.

THE STATE (1987) 3 NWLR (PART 61) 538 AT 552, OGOALA VS THE STATE (1991) 2 NWLR (PART 175) 509 AT 533, UGWUMBA VS THE STATE (1993) 5 NWLR (PART 296) 660 AT 674 AND ANDOHUNYON VS THE STATE (1996) 2 SCNJ 280 AT 288 to support his submission that a Court can and is entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case and, that a single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration.

On the meaning and when conspiracy can be said to have been committed, Counsel referred us to STATE VS. AJULUCHUKWU (2011) 5 NWLR (PART 1239) 78 AT 91H – 92A, IKEMSON VS STATE (1989) 3 NWLR (PART 110) 455. He cited SOWEMIMO VS. STATE (2012) 2 NWLR (PART 1284) 372 to support his submission that conspiracy may be inferred by a trial Court from a set of facts through which a common purpose is achieved.

He urged us to note that the totality of the evidence presented by the Prosecution during trial points to the conclusion that the Appellant and his co-defendants criminally conspired to rob PW1 and PW2 and the trial Court was right when it so held. He further urged us not to disturb the findings of the trial Judge who had the opportunity of seeing the witnesses and watching their demeanor while they testified in the witness box. He cited ENANG & ORS VS ADU (1981) LPELR – 1139 (SC) to support his submission. He finally urged us to resolve this issue against the Appellant.

I believe the starting point is to restate the settled position of the law that a vital element of our criminal jurisprudence is that the Prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. In OGUNDIYAN VS. STATE (1991) 1 NSCC 448, also reported in (1991) LPELR – 2333 (SC) AT PAGES 13 – 14, the Supreme Court per OBASEKI, JSC said: “The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe Vs. The King 13 WACA 105 at 106.

In that celebrated case, Verity, CJ (Nigeria) delivering the judgment of the Court on the standard of proof said: “As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin B in Rex V.

White 4 F &F 383 at 384 where the learned Baron said: – “In order to enable you return a verdict against any person, you must be satisfied beyond reasonable doubt of his guilt and as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability, your duty is to acquit.” Proof beyond reasonable doubt connotes such proof as precludes every reasonable proposition except that which it intends to support. See OLADELE VS. NIGERIAN ARMY (2004) 6 NWLR (PT 868) 166 179. It also connotes sufficiency of evidence. See NSOFOR V.

STATE (2004) 18 NWLR (PT. 905) 292 305. A case is proved beyond reasonable doubt if the evidence against the accused person is strong as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”. The cases on this point are many but I shall cite a few. See SABI VS. STATE (2011) 14 NWLR (PT. 1268)421, IWUNZE VS. FEDERAL REPUBLIC OF NIGERIA (2013) 1 NWLR (PT. 1324)119, NJOKU VS.STATE (2013) 2 NWLR (PT. 1339) 548, OSUAGWU VS.STATE (2013) 5 NWLR (PT. 1347) 360 AND AJAYI VS.STATE (2013) 9 NWLR (PT. 1360) 589.

The legal terminology “Proof Beyond Reasonable Doubt” does not mean proof to a scientific certainty or with mathematical exactitude. See THE STATE VS. AZEEZ (2008) 4 SC 188. It does not belong to the realm of heavenly trials. See SHANDE VS. STATE (2005) 12 MJSC 152 and does not mean proof beyond all shadow of doubt. See JOHN AGBO VS. STATE (2006) 1 SC (PT. 11)73 AND MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 AT 373. All that the Prosecution needs to do is establish the guilt of the accused with compelling and conclusive evidence.

See DIBIE VS.STATE (2007) 3 SC (PT. 1)176, AKALEZI VS.STATE (1993) 2 NWLR (PT. 273)1; ONAKOYA VS.FRN (2002) 11 NWLR (PT. 779)595; AGBO VS. STATE (2006) 6 NWLR (PT. 997)545 AND  UWAGBOE VS.STATE (2007) 6 NWLR (PT. 1031)606. The law is trite that the standard of proof required in Criminal cases, is static and does not shift. See EHIMIYEIN VS. STATE (2016) 16 NWLR (PT. 1538) 173 AT PAGE 198 PARAGRAPHS E – F where the Court held thus: “I agree with Learned Counsel for the Respondent that this standard of proof in a criminal trial is static and does not shift. See ONAFOWOKAN VS.

STATE (1987) 3 NWLR (PT. 61)538, IKEM VS. STATE (1985) 1 NWLR (PT. 2)378, MOSES IVA VS. THE STATE (2010) 4 NWLR (PT. 1184)217 AT 243.” All I have been laboring to say is that the Respondent had the duty to establish all ingredients of the offence of Criminal Conspiracy to commit Armed Robbery and Armed Robbery with which the Appellant was charged in tandem with the dictates of Section 138(1) of the Evidence Act, LFN, 2011 as well as Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). See GIKI VS.

STATE (2018) 6 NWLR (PT. 1615) 237 AT 249, PARAGRAPHS D – E where the Court held thus: “By the provision of Section 138(1) of the Evidence Act, LFN 2011, prosecution has the burden to prove its case beyond reasonable doubt.” In BELLO VS. COP (2018) 2 NWLR (PT. 1603)267 AT 297 PARAGRAPHS C – F, the Supreme Court held as follows: “In a criminal trial however, before the sanction (punishment) can be applied, the law requires that the ingredients of the offence or of each of the offences, must be proved by the prosecution throughout, beyond reasonable doubt. See MILLER VS.

MINISTER OF PENSIONS (1947) Z.E.R. 372, LORI VS. STATE (1980) 8 – 11 SC 81, AMAH VS. STATE (1978) 6 – 7 SC 27. In other words, in all criminal cases, without exception, the prosecution has the heavy responsibility to prove the offence proffered against the accused beyond reasonable doubt, in simple and ordinary parlance means that the prosecution is required by law to prove that both in law and fact the accused committed the offence or offences with which he is charged. See IDOWU VS. STATE (2000) 12 NWLR.” See also AJAYI VS. STATE (2013) 9 NWLR (PT. 136)589 AT 616 PARAS B – D AND MUHAMMAD VS.

STATE (2017) 13 NWLR (PT.1583)386 AT 421 PARAS E – H. On the Appellant’s conviction for Armed Robbery, it is settled that for an offence of Armed Robbery to be established against him, the Respondent had the duty to prove the following ingredients: i) That there was robbery; ii) That the robbery was an armed robbery and iii) That the accused person was the armed robber or was among the armed robbers. See ADELEKE VS. STATE 2013 6 NWLR (PT. 1381)556 AT P. 582 – 583 PARAS G – A, OTITI VS. THE STATE (1991) 8 NWLR (PT. 207) P.103 AT P.118 PARAS C – D AND STATE VS.

AJAYI (2016) 14 NWLR (PT. 1532) P.196 AT 227 -228 PARAS G – A. The position of the law is that all the above ingredients must be proved beyond reasonable doubt by the Respondent before it can secure conviction. I have critically perused the record and I hold that the Respondent successfully discharged the onus required of it that there was robbery, that the robbery was Armed Robbery and that it was the Appellant that committed the robbery or was one of the Robbers.

In fact, I also note that the Respondent’s four (4) witnesses and the eleven (11) exhibits tendered linked the Appellant and his co-defendants with Armed Robbery. The Appellant’s denial is so weak that it cannot be believed by any rational person in the face of available evidence on record from the prosecution. His denial of being present at the scene of crime is, indeed, an afterthought and I so hold. The Respondent discharged the burden on it that the Appellant was one of those who robbed PW1 and PW2.

I have perused the oral account of the Armed Robbery incidence given by PW1 and PW2 who are the victims wherein they identified the Appellant as one of the Robbers that robbed them and I find and hold that their evidence is unassailable. The Appellant’s Confessional Statements made at Sanyo Police Station and SARS Dugbe, Ibadan i.e. Exhibits B1 and S1 respectively contain unequivocal admission of the commission of the crime.

The evidence of PW3 (Kunle Azeez) and PW4 (Inspector Lawal Mutiu) who were the Investigating Police Officers combined with Exhibits A1, A2, 1, 2 & 3 (Statements of PW1, PW3, cut-to-size pistol, unregistered Boxer Bajaj Motorcycle and Bajaj Motorcycle with Registration Number TTN 635 NC (recovered from the Appellant and his Co-defendants) constitute positive circumstantial evidence which linked the Appellant and his Co-defendants to the commission of the crime alleged against them.

I have taken the pain to examine the Appellant’s Extra-Judicial Statement and I agree in toto with the Counsel to the Respondent that there is direct and circumstantial evidence before the trial Court which established the offence of Criminal Conspiracy and Armed Robbery against him. PW1’s testimony leaves no one in doubt on the identity of the Appellant and his co-defendants. For instance, evidence on record shows that the Armed Robbery incidence occurred in broad daylight and PW1 had ample time to observe the features of the robbers.

PW2 stated under his cross-examination at page 25 of the record that the Appellant and his co-defendants themselves led the Police to his shop as part of the places they had gone to rob. He identified the Appellant as one of those that robbed him in his shop when he went to the Police Station. Clearly, all these pieces of evidence knock off the need for identification parade to identify the Appellant.

I therefore have no hesitation in agreeing with the Respondent’s Counsel and the trial Court that in the face of PW1 and PW2’s convincing and uncontradicted evidence, a formal identification parade was not necessary.

The manner in which the Appellant was identified complied with legal requirement and I so hold. See UKPABI VS. STATE (2004) 11 NWLR (PT. 884) 439 AND NDUKWE VS. STATE (2009) 7 NWLR (PT. 1139)43. Furthermore, I note that in Exhibits B2 and S2, the Appellant admitted participating in the robbery and gave detailed account of his level of participation in the crime. It is trite that where an accused is sufficiently identified by the victim of the robbery and there are other pieces of evidence that corroborate the evidence of the witness, there would be no need for an identification parade.

See ANYANWU VS. THE STATE (1986) 5 NWLR (PT. 43)612 AND NWACHUKWU VS. A. G. IMO STATE (2003) 6 NWLR (PT. 816)218. In UKPABI VS. STATE (SUPRA) UWAIFO JSC at page 450 stated thus: “Identification parade is not necessary where the witness recognized one of those who robbed him while the matter was still fresh in his mind and the man was still in his neighbourhood and within easy reach. See also MBENU VS. STATE (1988) 3 NWLR (PT. 84) 615 AND ABUDU VS. THE STATE (1985) 1 NWLR (PT. 1) 55 AT 61 – 62.” Further to the above is the evidence of PW3 (Sgt.

Kunle Azeez) that himself and one Inspector Abiub Ismail dashed to the scene of crime and arrested two robbers with the help of members of the community and that they recovered a cut-to-size locally made pistol and two Boxers Bajaj Motorcycles. They testified they discovered three of the robbers had run into the bush but with the help of members of the community they arrested them. In the course of their investigation, they discovered that those arrested had robbed PW1. Indeed PW1 identified them as the persons who robbed her in broad daylight.

PW4 (Inspector Lawal Mutiu) also stated under cross-examination that PW1 recognized the Appellant and his co-defendants as the people that robbed her. This piece of evidence was neither satisfactorily challenged nor contradicted by the Appellant. It corroborates the Appellant’s admission in his confessional statements that he was part of the people that robbed PW1 and PW2. From the totality of the evidence on record, it is clear beyond any peradventure that the Respondent proved the essential ingredients of Armed Robbery against the Appellant beyond reasonable doubt and I so hold.

On the count of conspiracy, the Appellant was alleged to have criminally conspired with his co-defendants and others at large to rob PW1 and PW2. He categorically denied committing the offence. In his evidence in chief at page 59 of the record, the Appellant testified as follows:- “I heard everything said about the case. It is not true that I committed robbery with the other Defendants in the dock. It is not true that I robbed PW1. I did not rob with Exhibit G …. At the station they said we are the people causing trouble in the area. That we did rob. They started beating me.

I denied ….” Having painstakingly examined the record, I find and hold that the Respondent discharged the burden on it that the Appellant conspired with others to rob PW1 and PW2 and the trial Court was right to so hold. The conclusion of the trial Court is rooted in the evidence on record. The Appellant denied the offence but his denial was discredited in the face of compelling oral and documentary evidence presented by the Respondent. On the meaning of Conspiracy, this Court held in JIMOH VS.

STATE (2012) 3 NWLR (PT. 1286)177 AT 175 – 176 PARAS G – A, as follows: “Conspiracy means a meeting of the minds of conspirators. It consists of the intentions of two or more persons to do an unlawful act or to do a lawful act by unlawful means and conviction for conspiring is usually based on circumstantial evidence.” Still on the proof of conspiracy, this Court in YAKUBU VS. STATE (2014) 8 NWLR (PT. 1408)111 AT 123 PARAS F – H held thus: “To prove conspiracy, the prosecution must prove the following: i.

An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement as done by one or more of the parties in furtherance of the agreement. iii. Specifically that each of the accused persons individually participated in the Conspiracy.” See also USUFU VS. STATE (2007) 1 NWLR (PT. 1020)44 AT 115 PARAS F – H, OBASANJO-BELLO VS. FEDERAL REPUBLIC OF NIGERIA (2011) 10 NWLR (PT. 1256)605 AT 626 PARAS B – C.

I have examined the record over and over again and I have no doubt that the Respondent established directly and by inference that there was an agreement between the Appellant, his co-defendants and others at large to rob PW1 and PW2. It also established that the Appellant took part in the Armed Robbery. The combined effect of the evidence presented by the Respondent at the trial point to the irresistible conclusion that the Appellant conspired with his co-defendants and others at large to rob PW1 and PW2.

There is both direct and circumstantial evidence linking the Appellant with the offence charged and I so hold. In GARBA VS. COP (2007) 16 NWLR (PT. 1060)370 AT 405 PARAS A – B, this Court held as follows: “To prove conspiracy and be able to achieve conviction, the prosecution must prove, inter alia that there was:- (b) Specifically that each of the accused individually participated in the Conspiracy.” The Appellant admitted in his confessional statement that himself and other Defendants conspired to rob the victims.

The Appellant’s attempt to create a doubt in the Respondent’s case at the lower Court was unsuccessful and I so hold. The law is settled that reasonable doubt that will justify an acquittal should be predicated on reasons arising from the evidence adduced or lack of it. It must perforce be a doubt which is capable of being entertained by anyone and must not be fanciful, flowery or imaginary. The doubt must be so real that it cannot be waived aside or wished away. See ABEKE VS. THE STATE (2007) ALL FWLR (PT. 366)644, BOLANLE VS. THE STATE 12 SC (PT. 11)145 AND OCHIBA VS.

THE STATE (2011) 1 – 2 SC (PT. 11)43. The above standard is lacking in this Appeal and I so hold. There is nothing on record to show that the factual circumstances proved during the trial is consistent with the Appellant’s innocence. I am particularly in agreement with the trial Court that the totality of oral and documentary evidence presented by the Respondent during trial is too strong to overlook.

Let me restate that whenever an accused person makes an extra-judicial statement admitting the commission of an offence with which he is charged, that Statement will still be considered and/or taken into account in the determination of his guilt notwithstanding that he gives evidence in Court to the contrary. See AKPAN VS. THE STATE (2000) 12 NWLR PG. 682 AT 692 AND ALLI DOGO VS.THE STATE (2013) VOL. 221 LRCN (PT. 1) 164 AT 170. In EMOGA VS. THE STATE (1997) 7 SCNJ AT 518, the Supreme Court, per S. U.

ONU, JSC stated as follows: “It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he has a change of mind.

The whole trial will be a mockery as aptly put by the Attorney-General of Ondo State and it would be dangerous to apply the principle of extra-judicial confession of accused person as it would open a flood gate of retracing of all Statements made by the accused persons before police officer.” The law is settled that a Confessional Statement voluntarily made is the best evidence and can be relied upon to convict an accused person. See PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751)1620 PARAGRAPH B. It is the strongest evidence of guilt on the part of an accused person.

It is stronger than evidence of an eye witness because it is from the horse’s mouth. See KASA VS. THE STATE (1994) 5 NWLR (PT. 344)269, GIRA VS. STATE (1996) LPELR – 1322 (SC) AND ALO VS. STATE (2015) LPELR – 24404 (SC).

It must also be understood that if a suspect makes a free and voluntary confession that is direct and positive in his extra-judicial statement to the Police, that alone is sufficient to ground and support conviction without corroboration. See ASIMIYU ALARAPE & ORS VS. THE STATE (2001) 5 NWLR (PT. 705) 79 AND OZANA UBIERHO VS. THE STATE (2005) 5 NWLR (PT. 919) 644.

Flowing from the above, I hold that the Appellant’s Exhibits B2 and S2 are Confessional Statements within the meaning of Section 28(1) and (2) of the Evidence Act 2011 and were properly examined by the trial Court before convicting the Appellant. I hold further that there is evidence outside Exhibits B2 and S2 to show that they are true. Furthermore, they are corroborated by the evidence of PW1 – PW4. I find and hold that the Appellant had the opportunity of committing the offence with which he was charged, tried and convicted.

Exhibits B2 and S2 are both consistent with other facts which have been ascertained and proved. See YESUFU VS. STATE (1976) 6 SC 167, HARUNA VS. ATTORNEY-GENERAL OF THE FEDERATION ​(2012)209 LRCN, 70 AT PARAGRAPHS F – P, ONOCHIE & ORS VS. THE REPUBLIC (1966) NWLR 307, HARUNA ISAH VS.THE STATE (2007) 12 NWLR (PT. 1049)637 AT 656, BUBA VS.STATE (1992) 1 NWLR (PT. 215)1 AT 19, SAMUEL AYO OMOJU VS.THE FEDERAL REPUBLIC OF NIGERIA (2008) VOL. II MJSC 156, 173 PARAGRAPHS B – D, KANU VS.THE KING (1952) 14 WACA 30, DEGA VS. STATE (2014) LPELR – 24197 (CA) AND MICHAEL VS.

THE STATE (2016) LPELR – 41341 (CA) and a host of others. In OJO VS. FRN (2008) 11 NWLR (PT. 1099)467 AT 523 PARAGRAPHS D – F, the Supreme Court held as follows: “However, before a confessional statement alone can ground the conviction of an accused person and without corroboration, it must be shown to be direct, positive and unequivocal as to the admission of guilt by an accused person.

The Court must be satisfied with the truth of such confession … otherwise, it should be desirable to have outside the accused’s confession to the police some further evidence no matter how slight of the circumstances which make it probable that the confession was true.” (Underlined for emphasis).

Also in OGUDO VS.

STATE (2011) 18 NWLR (PT. 1278)1 AT 25 – 26 PARAGRAPHS G – G, the Court held thus: “A Court can convict on the confessional statement of an accused person but before this is properly done the trial judge should evaluate the confession and testimony of the accused person and ask himself the following questions: (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statement made in it of facts true as far as they can be tested? (d) Did the accused person have the opportunity of committing the offence charged? (e) Is the confession probable? (f) Is the confession consistent with other facts which have been ascertained and have been proved?

See KANU & ANOR VS. KING (1952) 14 WACA P. 30, MBANU VS. STATE (1988) 3 NWLR (PT. 94) P. 615 AND STEPHEN VS. STATE (1986) 5 NWLR (PT. 46) P. 978.” See also AKINDIPE VS. STATE (2016) 15 NWLR (PT. 1536) 470 AT 490 – 491 PARAGRAPHS F – A AND EFFIONG VS. STATE (2017) 2 NWLR (PT. 1549)203 AT 231 PARAGRAPHS F – H. The trial Court subjected Exhibits B2 and S2 to the above test and was right when it relied on them to convict the Appellant. What is more, the Respondent presented evidence outside the confessional statements of the Appellant to prove their case.

I find and hold that there are no material contradictions in the evidence of the prosecution witnesses as submitted by the Appellant’s Counsel. To my mind, his submission relate to minor discrepancies that do not affect the credibility of the evidence presented by the prosecution. The law is settled beyond peradventure that it is not every discrepancy that will raise a doubt in the case of the Prosecution. It is only contradictions that are substantial and fundamental to the main issue(s) in question that would be fatal. This is not the situation in this appeal.

In short, I hold that PW1 – PW4 did not reverse themselves in their evidence and did not change course from what they stood for before and throughout the trial. They did not deviate from what they had earlier said and did not give inconsistent account of the same event. The Appellant at his trial raised the defence of alibi. The law on alibi is commonplace. In UKWUNNENYI & ANOR VS. THE STATE ​(1989) 4 NWLR (PT. 114) 131/144, the Supreme Court said: “It is well settled that the defence of alibi where successful, result in the acquittal of the accused relying on the defence.

It is a claim of absence of both actus; not only that it is not reus, but also that there was in fact not act. It is also a defence of absence of mensrea. A defence of alibi by the accused is a combined defence of lack of act and mensrea. That is, that he was not at the scene of crime and was therefore neither in a position to have committed the offence nor participated in its commission. There is no doubt that such a defence being a matter particularly within his personal knowledge, the burden of leading evidence of the fact is on the accused. See GACHI VS.

THE STATE (1965) NMLR 33, ODIDIKA VS. THE STATE (1977) 2 SC 21 … The best defence and evidence of an alibi is one pleaded at the first opportunity and not at the time of trial.” Obaseki, JSC (of blessed memory) in his concurring judgment in UKWUNNENYI & ANOR VS. THE STATE ​ (Supra) AT PAGE 149 also explained thus: “Alibi is a powerful defence for the innocent if true but gives no protection to the guilty if untrue.

When it is raised at the investigation stage, it is a bounding duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed). See Gachi Vs. The State (1965) NMLR 333, Ntam Vs. The State (1968) NMLR 86, Bozin Vs. The State (1985) 2 NWLR (Pt. 8) 465, Nwabueze Vs. The State (1988) 4 NWLR (Pt. 86) 16 …..

If however the suspect fails to put it forward to the police either deliberately or negligently and then spring the defence up as a surprise in Court, he has an uphill task of convincing the trial judge that he was not present at the scene of crime participating in the crime when there is strong evidence of his identity as a participant present at the scene of crime.” From the above, it can easily be deduced that the basic rules and particulars on which a valid plea of alibi must stand on include: (a) the specific place/places where the accused was, (b) the people in whose company he was, and (c) what if any, transpired at the said time and place.

See EBRE VS. STATE (2001) 12 NWLR (PT. 728)617 AT 636 PARAGRAPHS C – G. Still on the rules on which a valid plea of alibi must stand, I refer to the case of STATE VS. THEOPHILUS (1966 – 67) 10 ENLR 32, where the Supreme Court per OPUTA JSC (of blessed memory) pronounced as follows: “An accused who relies on the defence of alibi will endeavor to get his witnesses to Court to prove his alibi.

If he wants the police to investigate his alibi he has to provide tangible information relating to the place he was at the material time, the person with whom he was and their correct addresses and any information which will be of assistance to the police. In this case, I do not think anyone would expect the police merely on the assertion that the accused returned from Udi by 8p.m. to go on a wild goose chase to Udi in an effort to prove or disprove this vague alibi.” In NSOFOR VS.

STATE (2002) 10 NWLR (PT. 775)274 AT 294 – 295, this Court, per BA’ABA JCA stated as follows: “The mere allegation that he was not at the scene is not enough. The accused person must give some explanation of where he was and who, could know of his presence at that other place at the material time of the commission of the offence in question.” Finally, in NWABUEZE VS. THE STATE (1988) 4 NWLR (PT. 86) 16, the Supreme Court said: “The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals.

In sum, in establishing the defence of alibi, it is not as if an accused person has no duty to discharge than the mere assertion of being elsewhere at the time the offence was committed. An accused person is duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked.

Where he fails to discharge that basic duty, he cannot avail himself of the defence.” The effect of all the above judicial authorities is that the duty of the Police to investigate the Appellant’s alibi could only have arisen if the Appellant disclosed full particulars of the exact place he was, the time he was there, the person or persons with whom he was or who saw him there. Unfortunately, he did not provide these details in all his extra-judicial statements. As OPUTA JSC put it in CHRISTOPHER OKOSI VS.

THE STATE (1989) ALL NLR 170: “The police are not expected to go on a wild goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.” I have gone through the entire gamut of the record particularly Exhibits B2 and S2 and my finding is that the Appellant failed to furnish such information capable of investigation by the Police within the time required.

There is stronger evidence against the Appellant on his alibi. The Respondent led credible and accepted evidence which fixed the Appellant at the scene of crime at the time the offence was committed. The Appellant’s alibi is of no moment because the Respondent’s evidence is positive, unequivocal, and irresistibly led to his guilt. See ABUBAKAR MOHAMMED VS. STATE (2015) 10 NWLR (PT. 1468)496 AT 524 PARAGRAPH C per RHODES-VIVOUR JSC, OSUAGWU VS. STATE (2013) 5 NWLR (Pt. 1347)360 AT 383 PARAGRAPH H, SAMPSON EBENEHI & ANOR VS.THE STATE (2009) 6 NWLR (PT. 1138)431 AT 448 PARA A per OGBUAGU JSC.

The Appellant failed to prove he was somewhere else at the time the offence was committed. I wish to emphasize that Exhibits B2 and S2 do not contain any information on alibi capable of investigation by the police. The Appellant who raised what appears like an alibi for the first time during his defence had an uphill task which duty he did not discharge. From the totality of the evidence on record, there is no doubt the defence of alibi was not available to the Appellant and I so hold.

The inevitable conclusion on the sole issue formulated for determination in this appeal is that it is resolved against the Appellant and in favour of the Respondent. The Respondent proved the offences alleged against the Appellant beyond reasonable doubt. I agree in toto with the reasoning and conclusion of the trial Court and find no reason whatsoever to disturb its judgment. In the light of the foregoing, I hold that this appeal lacks merit and it is hereby dismissed. I affirm the judgment of the Oyo State High Court in SUIT NOS. I/103C/16 delivered on 25th June, 2021.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, FOLASHADE AYODEJI OJO, JCA, and just delivered. I am in agreement with his reasoning and conclusion that the appeal is devoid of merit as the evidence on record proves the guilt of the Appellant beyond reasonable doubt. In the absence of any useful point of law to add to the factual and legal analysis made by my Lord in the leading judgment, I also dismiss the appeal and affirm the judgment of the trial High Court of Ogun State.

ABBA BELLO MOHAMMED, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. I agree entirely with the reasoning and conclusions stated therein. The evidence contained in the printed Record of Appeal clearly shows that the Respondent had led credible evidence which established that the Appellant was among those who robbed PW1 and PW2. The said PW1 and PW2 who were the victims of the robbery have clearly identified the Appellant as one of the robbers who robbed them.

In addition, the Appellant had in his confessional statements also confessed to having committed the crime. In other words, the Respondent led credible direct evidence including that of eye witnesses and victims of the robbery incident, which had corroborated the confessional statements of the Appellant. And there are clearly no contradictions in the evidence of the said prosecution witnesses as alleged by the Appellant.

As for the defence of alibi raised by the Appellant, it is trite law that a defence of alibi evaporates once there is credible evidence that fixes the defendant at the scene of crime: YALIA v STATE (2019) LPELR-47398(SC), per Kekere-Ekun, JSC at pages 37 – 38, para. D. In the instant case, the Respondents have led credible evidence which fixed the Appellant at the scene of crime at the time the robbery was committed.

Also, a defence of alibi being a matter exclusively within the knowledge of the defendant, must be raised at the earliest opportunity to enable the relevant investigative agency to investigate and possibly debunk same before trial. A defence of alibi only raised at trial, as done by the Appellant, is an afterthought and therefore an exercise in futility. The trial Court is bound to disregard and discountenance same. See SMART v STATE (2016) LPELR-40728(SC), per Rhodes-Vivour, JSC at page 24, para. D.

On the whole, I adopt as mine, in addition to the above, the detailed reasons and conclusions contained in the lead judgment. I also find this appeal devoid of merit. Accordingly, I dismiss same and affirm the judgment of the trial Court delivered on the 25th of June, 2021 in Suit No. I/103C/16.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal has emanated from the judgment of the Court of Appeal, Ilorin Judicial Division, delivered on May 18, 2018 in appeal NG. CA/IL/C.19/2017. By the judgment in question, the Court below, Coram C. N. Uwa, K. A. Barka, and B. M. Ugo, JJCA affirmed the conviction and sentence (to death) of the Appellant by the trial High Court of Kwara State.

Dissatisfied with the said conviction and sentence passed thereupon, the Appellant appealed to the Court below. By the vexed judgment thereof, the Court below came to the following conclusion: In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held that the gun falls within the definition of “firearm” under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established. Therefore, the conditions under the Act were met.

The Appellant was rightly convicted for illegal possession of firearms. On the offence of armed robbery pursuant to Section 1(2) of the Act. … All the three

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ingredients were established by the prosecution at the trial Court… In sum, having resolved all the issues against the appellant, I hold that the appeal is without merit. I dismiss it. I affirm the conviction and sentence of the appellant by the trial Court.

The Appellant’s notice of appeal is predicated upon a total of 8 grounds, thereby urging this Court to allow the appeal and set aside the conviction and sentence passed thereupon by the trial Court and affirmed by the Court below.

On February 11, when the appeal came up for hearing, the learned counsel addressed the Court and adopted the articulated argument contained in their respective briefs, there by warranting this Court to reserve judgment to today.

​The Appellant’s brief of argument, settled by M. I. Hanafi Esq on 29/05/2020, was actually deemed properly filed and served on 24/09/2020. It spans a total of 40 pages. At page 5 thereof, four issues have been couched: (i) Whether the Court of Appeal rightly affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial; distilled from

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ground 6 of the grounds of appeal. (ii) Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial; Grounds 3,4,5 and 8; (iii) Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearm under Section 3 (1) of the Robbery and Firearms (Special provision Act) 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004; Ground 7 (iv) Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice.

Grounds 1 and 2.

The issue No. 1 is argued at pages 5-11 of the said brief, to the effect that from the

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evidence adduced at the trial, it is apparent that the trial Court allowed the prosecution to ask the Appellant under cross-examination tending to show the Appellant was a hardened criminal, or given to armed robbery. It is submitted, that all those pieces of evidence showing facts of other criminal offences committed by the Appellant are irrelevant and inadmissible in law. See Section 82 of the Evidence Act; VIVIAN ODOGWU VS THE STATE (2015) 14 NWLR (Pt. 1373) 74 @ 107 Paragraphs E -G. The Court is urged to be so persuaded by that authority.

It is argued that in the instant case, nothing warranted the question of bad character of the Appellant from the evidence-in-chief. The Appellant never gave evidence of his own character, thus the bad character thereof is not a fact in issue.

Further argued, that the evidence of bad character received at the trial did influence the mind of the trial Court, and occasioned a miscarriage of justice. Unfortunately, the conviction of the Appellant was affirmed by the Court below, despite the grave miscarriage of justice evident on the record.

​In the circumstances, the Court is urged to so hold and set

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aside the vexed judgment.

The issue No 2 is argued at pages 11 – 19 of the brief, to the effect that the trial Court observed the disparity between the date and the venue contained in the particulars of the offence in relation to the date and venue proved at the trial. Nevertheless, the Court below affirmed the conviction of the Appellant.

It is posited, that Section 227 of the Administration of Criminal Justice Law, Laws of Kwara State, is designed to save the charge from non-material errors in the drafting of the charge, such as error of duplicity, non-joinder, misjoinder, et al. However, the rule is allegedly not meant to render the fundamental requirements of a charge in-operative. See IBRAHIM VS STATE (2015) 11 NWLR (Pt. 1469) et al.

Further posited, that in the instant case, the Appellant was charged for an entirely different robbery other than the robbery he could have been associated with. Thus, the Court below was wrong in applying the ratios of the decisions relied upon to the present case, since the factual situations are entirely different and the cases are distinguishable from this case. In the circumstances, the

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Court is urged to so hold.

The issue No. 3 is argued at pages 19 – 34 of the brief, thereby questioning the propriety of convicting the Appellant for the alleged illegal possession of firearms, contrary to Section 3 (1) of the Robbery and Firearms (Special Provisions) Act, 2004 (Supra).

It is submitted, that from the definition of the offence of illegal possession of Firearms under Section 2 of the Firearms Act (Supra), mere possession of firearms is not an offence. See BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363 @ 387 paragraph C.

It is argued, that from the provisions of Sections 3, 4, and 5 of the Firearms Act (Supra) and parts I, II and III of the Schedule thereto, the firearms mentioned therein are not ordinarily prohibited. And possession of any of them without a license would not constitute an offence under the Firearms Act (Supra).

Further argued, that the phrase “the Commissioner of Police may by order”, in Section 5 of the Act, the word “may” as couched therein is permissive or directory. It does not oblige or compel the Commissioner of Police to prohibit the firearms. Thus, until the Commissioner of Police so makes the

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order, the possession of such firearm is not an offence. See JESSICA TRADING CO. LTD VS. BENDEL INSURANCE CO. LTD (1996) 10 NWLR (Pt. 476) 1; ABEL OMOSHOLA VS. COMMISSIONER OF POLICE (1977), 4 & 5 SC 26; MOMODU VS THE STATE (2008) All FWLR (Pt. 447) 67 @ 116 Paragraphs E – G; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 124 @ 303.

By the far-reaching argument at pages 26 - 34 (Paragraphs 3.44 – 3.58) of the said brief thereof, the Appellant has urged upon this Court to depart from, and overrule the decisions thereof in BILLE VS THE STATE (2016) 15 NWLR (Pt. 1536) 363; THE STATE VS OLADOTUN (2011) 10 NWLR (Pt. 1256) 542; OKASHETU VS THE STATE (2016) 15 NWLR (PT. 1534) 126 @ 149 Paragraph D.

It is posited that this Court has the necessary jurisdiction to depart from and overrule its previous decisions, though sparingly and with great hesitation. See TEWOGBADE VS OBADINA (1994) 4 NWLR (Pt. 338) 326 @ 351 Paragraphs D – F; ODI VS OSAFILE (1985) 1 NWLR (Pt. 1) 17; SHEMA VS FRN (2018) 9 NWLR (Pt. 1624) 337, et al.

​Further posited that despite the need to adhere to the principle of stare decisis, the Court is urged not to perpetuate

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the error in OKASHETU and other cases, otherwise miscarriage of justice inherent therein would continue to rule in subsequent cases. See MRS BUCKNOR MACLEAN VS INLAKS LTD (1980) All NLR 184 Per Idigbe, JSC @ 198. The Court is urged to so hold.

The issue No 4 is canvassed at pages 34 - 38 of the brief. It is submitted in the main that from the excerpt of the judgment (at page 127 of the record), regrettably, the Court below failed to realise the basis of the Appellant’s complaint and treated same as a defence of alibi, which it found belated. This led to a miscarriage of justice. See LADO VS THE STATE (1999) 9 NWLR (Pt. 619) 369 @383 Paragraph F; OFORLETE VS THE STATE (2000) 12 NWLR (Pt. 681) 415 @ 429 paragraph H; et al.

Allegedly, the failure to consider the Appellant’s defence is a denial of his constitutional right to fair hearing. SeeEKIYOR VS BOMOR (1997) 19 NWLR (Pt. 519) 10; MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 @ 428 – 429; ONAGORUWA VS IGP (1991) 5 NWLR (Pt. 193) 593 @ 640, et al. The Court is urged to so hold.

​Conclusively, the Court is urged upon to acquit and discharge the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Contrariwise, the Respondent’s brief, settled by Jimoh Adebimpe Mumini Esq on 09/11/2020, spans a total of 18 pages. At page 2, the Appellant’s four issues have been adopted.

On issue No. 1, it is submitted in the main, that the Appellant’s complaint on the issue tantamount to a storm in a tea cup. Further submitted, that the alleged wrongful admission of the Exhibit DWC1 has not amounted to a miscarriage of justice in the peculiar circumstances of this case. That there was no objection from Appellant’s counsel when the issue was raised at the trial. See LAWAL VS THE STATE (1966) 1 All NLR 107 per Brett, JSC @ 110 113; OKAROH VS THE STATE (1990) LPELR -2423. In the circumstance, the Court is urged to resolve the issue No. 1 in favour of the Respondent.

The issue No. 2 is argued at pages 5 - 7 of the said brief, to the effect that the grouse of the Appellant on the issue was what he deserved as a conflict between the offence charged and the offence proved, and variation in dates and venue of the robbery as contained on the charge sheet.

​It was submitted that the variation in dates and place of the robbery cannot be regarded as

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fundamental, particularly when there is nothing on record to show that the Appellant was misled nor has that omission occasioned a miscarriage justice. Thus contended, that the conclusion thereby reached on the issue at pages 293-294 of the record is in tandem with the law, and ought not to be disturbed. In the circumstance, the Court is urged to so hold, and resolve the issue No. 2 in favour of the Respondent.

The issue No. 3 is argued at pages 7-9 of the said brief, to the effect that the Court below was right to have affirmed the judgment of the trial Court on illegal procession of firearms, contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, CAP. R11, Laws of the Federation of Nigeria, 2004.

It is argued that a firearm, albeit a locally made gun or any other gun, must be capable of firing ammunition. See JIYA VS. THE STATE (2020) 13 NWLR (pt. 1740) 159 @ 205 paragraphs E-F.

Further argued, that the invitation by the Appellant for the Court to revisit its earlier decisions in BILLE VS. THE STATE (supra); THE STATE VS. OLADOTUN (supra); and OKASHETU VS. THE STATE (supra), is uncalled for, in view of the

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clear provision of Section 2 of the Firearms Act CAP 146, Laws of the Federation, 1990. The Court is urged to so hold and resolve the issue 3 in favour of the Respondent.

Lastly but not the least, the issue No. 4 was argued at pages 10-12 of the brief, to the effect that the Court has a wide unfettered discretionary power to formulate its own issues in the interest of justice. Provided however, that those issues relate to the grounds of appeal and flow there from. See OMOWO-RARE VS. ONWOREWO (2010) 3 NWLR (pt. 1180) 58 @ 80; AGBARE VS. NIMRA (2008) 2 NWLR (pt. 1071) 378.

Allegedly, in the instant case, the Appellant not only raised the defense of alibi for the first time in Court, he refused to furnish the Court with particulars of the alibi so raised for the first time before the trial Court. Thus, the Court below was on a firm footing to have affirmed the decision of the trial Court. In the circumstances, the Court is urged to resolve the issue No. 4 in favour of the Respondent.

​The reply brief thereof, filed on 17/1/2020 by the Appellant spans a total of seven pages. The submission of the learned counsel is in the main to the

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conclusive effect, that the reception of the evidence of bad character is prejudicial and thereby led to miscarriage of justice, See LAWAL VS. THE STATE (1966) 1, NLR 107 @ 110; R. VS. COHEN (1938) 3 All ER 380 @ 381; R VS. ELLIS (1910) 2 KB 746 @ 763, et al.

The Court is urged upon to so hold, that the prosecution having asserted that the gun (found in the possession of the Appellant) was a locally made gun, must of necessity show that it falls into the category of firearms that cannot be possessed without permission or licence.

Having critically albeit dispassionately, considered the complex nature of the instant appeal, the far reaching submissions of the learned counsel contained in the respective briefs thereof, I am amenable to adopting the Appellant’s four issues for determination of the appeal, anon.

ISSUE NO 1 The first issue, as copiously alluded heretofore, raises the very crucial question of whether or not the Court below was right when it affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the Appellant’s bad character at the trial. The first issue is distilled from ground 6 of

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the notice of appeal.

Instructively, the instant issue was raised as a fresh issue by the Appellant, consequent upon the leave granted there to on 19/06/2019. The said issue relates to the evidence of bad character allegedly elicited from the Appellant and the co-defendants thereof under cross-examination.

​The present Appellant was the 2nd Defendant on record at the trial in question. The Appellant while responding to a question by the prosecution under cross examination, had this to say (at page 127, lines 7 - 18 of the record): It is true I attended Ajiogo Primary School Ketu Lagos. I did not attended Orisegun High School Ketu. I attended Immaculate High School Maryland Lagos. I am a native of Ilorin in Kwara State but I don’t know my Local Government. I lived all my life in Lagos. I know how to repair wrist watch, my father is a wrist watch repair.

It is not true that I was sent to Ilorin to come and learn Arabic. My sister is still at Ilorin, her name is Fausa. I always go to Bovina Club every Friday to play as a DJ., may be am an employee but I go there only on Fridays. It is true I have never met the police who arrested me before

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the day I was arrested (demeanour noted). I have never met the police who told me to sign before. It is not true that the gun was recovered from me. It is true I have another case of armed robbery against me before another Court.

Exhibit DWC 1 (the charge sheet regarding another armed robbery case No. KWS/7c/2014 was also tendered vide the 1st Defendant under cross examination.

According to the Appellant’s learned counsel, all those pieces of evidence showing facts of other criminal offences committed by the Appellant are not relevant, and therefore inadmissible under Section 82 of the Evidence Act (Supra).

The provisions of Section 82 of the Evidence Act are to the following effect: 82 (1): Except as provided in this section, evidence of the fact that a ‘defendant is of bad character’ is inadmissible in criminal proceedings. (2). The fact that a Defendant is of bad character is admissible: (a) when the bad character of the Defendant is a fact in issues or (b) when the Defendant was given evidence of his good character. (3) a Defendant may be asked questions to show that he is of bad character in the

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circumstances mentioned in paragraph (c) of the proviso to Section 180. (4). Whenever evidence of bad character is admissible evidence of previous conviction is also admissible.

Invariably, the noun ‘Character’ means the qualities that aggregate to make an individual human being distinctive from others, most especially in regard to morality and behaviour. In the case of FRANKLIN VS. LYNAUGH (1988) 487 USA 164, 174, 108 SC 1 2320 @ 2327, the US Supreme Court aptly defined character as the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behaviour. Thus, a ‘good character’ invariably denotes an individual person’s tendency to engage in lawful and moral (virtuous) behaviours.

Contrariwise, the term ‘bad character’ denotes an individual person’s propensity for, or tendency toward, unlawful or immoral behaviour. See BLACK’S LAW DICTIONARY 11th edition (2019) @ 291.

​Instructively, questions regarding moral (good) character have recently occupied a central place in philosophical discourses. The reason for this development is traceable to the resurgence of

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publications on modern moral philosophy. Most particularly, in 1958 G.E.M Anscombe published a seminal article “MODERN MORAL PHILOSOPHY”. It was postulated therein by Anscombe that Kantianism and utilitarianism, the two major traditions in Western Philosophy, perilously placed the foundation for morality in legalistic notions such as duty and obligations: To do ethics properly, Anscontbe argued, one must start with what is for human being to flourish or live well. That meant returning to some questions that mattered deeply to the Ancient Greek moralist.

These questions focused on the nature of “Virtue” …of how one becomes virtuous… and of what relationships and institutions may be necessary to make becoming virtuous possible: See STANFORD ENCYCLOPEDIA OF PHILOSOPHY @ WIKIPEDIA. Aristotle (1.384 – 322 BCE) defines good moral character: Excellence (of character) then, is a state concerned with choice, lying in a mean relative to us, this being determined by reason and in the way in which the man of practical wisdom (Phronimos) would determine it. Now it is a mean between two vices, that which depends on excess and that which

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depends on defect. See NICOMACHEAN ETHICS 11.6; STANFORD ENCYCLOPEDIA OF PHILOSOPHY, op cit.

In the instant case, apart from the evidence viva voce of the Appellant, Exhibit DWC1 was equally tendered by the prosecution vide the 1st Defendant under cross-examination. The said Exhibit DWC1 was in regard to another criminal charge(KWS/7C/2014) against the Appellant and Co-accused persons facing armed robbery prosecution.

The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible: (a) When the bad character of the defendant is a fact in issue; or (b) when the defendant (unwittingly) has given evidence of good character thereof.

A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act. ​The hallmark of these exceptions is that whenever evidence of bad

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character is admissible, evidence of previous conviction becomes equally admissible. See Section 82 (2), (3) & (4) of the Evidence Act (supra); ODOGWU VS THE STATE (2013) LPELR – SC 1221 2009 @ 33 – 34 Paragraphs; CHUKWUEKE VS THE STATE (1991) 7 NWLR (Pt. 205) 607 @ 618 Paragraphs E – F. Most particularly, in the case of ODOGWU VS THE STATE (Supra), it was aptly held by this Court that the character of the Appellant was not at all relevant or in issue. That what was in issue was whether or not she killed the deceased person.

And that the Appellant – had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (a) and (b) of the Evidence Act. Per Ngwuta, JSC (of blessed memory) @ 33 – 34 paragraphs B-B.

The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence

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ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice. See UGBALA VS. OKORIE(1975) 22 SC 1; OKAROH VS. THE STATE(1990) LPELR 2423; OKEGBU VS. THE STATE (1979) 11 SC.

In the instant case, there is no doubt that even if the evidence allegedly given under cross examination by the Appellant is expunged from the record of proceedings, there would still be other pieces of veritable evidence to sustain the conviction of the Appellant. In the circumstance, the first issue ought to be and same is hereby resolved against the Appellant.

ISSUE NO 2 The second issue raises the question of whether or not the Court below was right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the Appellant, having regards to the variance on the date and venue of the offence, as contained in the particulars of the offence, date and venue proved at the trial. The second issue is distilled from grounds 3,4,5 and 8 of the notice of appeal.

​It is a fundamental principle of

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criminal law, that every person who is charged with a criminal offence shall be presumed to be innocent until he is duly proved guilty beyond reasonable doubt. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

A fortiori, by virtue of Section 138(1) of the Evidence Act, if the commission of an offence by a party is directly in issue in any criminal or civil proceeding, it must be proved beyond reasonable doubt. See CHUKWU VS THE STATE (2007) 13 NWLR (Pt. 1052) 430; ALAKE VS THE STATE (1991) 7 NWLR (Pt.205) 567; UKPE VS THE STATE (2001) 18 WRN 84; AYUBKHAN VS THE STATE (1991) 2 NWLR (Pt. 172) 127 @ 144; BAKARE VS THE STATE (1987) 1 NWLR (Pt. 52) 579; EDE VS. FRN (2000) 18 WRN (Pt. 13); ITU VS THE STATE (2016) 5 NWLR (Pt. 1506 443 @ 465 et al.

By the combined effect of the provisions of section 36(5) of the 1999 Constitution (Supra) and Section 138 (1) of the Evidence Act(supra). The prosecution must prove its charge against the Appellant beyond reasonable doubt, otherwise, the Appellant ought to be acquitted and discharged. It must be reiterated, that the heavy burden squarely placed upon the

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prosecution under Section 36(5) of the 1999 Constitution (Supra), and Section 138 (1) of the Evidence Act (Supra), does not shift. It is as constant as the ‘Northern Star’, or to borrow the words of the Court of Appeal “as constant as the June/July rains of Nigeria.” See ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567 Per Niki Tobi, JCA (as the learned Lord then was) @ 591 paragraph Q.

In the case of CHUKWU VS THE STATE, the trite fundamental doctrine was aptly re-echoed: In ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial Court, nay the Appellate Court, is enjoined to ensure that nothing is taken for granted. See Martins Vs. The State (1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphs E - F; Bakare Vs The State (1988) 3 NWLR (Pt. 52) 579; (1987) 3 SC at 33; Mbenu vs.

The State (1988) 3 NWLR (Pt. 84) page 615 at 626 paragraphs C - D, in which the Supreme Court held emphatically, inter alia, that – “Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any

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shadow of doubt. Per Nnamani, JSC (of remarkable memory).” See CHUKWU VS. THE STATE (2006) LPELR – 77 (CA) Per Saulawa, JCA (as he then was).

As alluded to above, the Appellant was charged under Sections 6 (a) and 1 (2) of the Armed Robbery and Firearms (Special Provisions) Act, 2004: “6.

Any person who – (a) aids, counsels, abets or provides any person with firearms for use to commit an offence under Sections 1,2,3 and 4 of this Act; or (b) conspires with any person to commit such an offence; or (c) supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act. 1 (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years. (2) If (a) any offender mentioned in sub section (1) of this section is armed with any firearms or any

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offensive weapon or is in company with any person so armed; or (b) at or immediately before or after the time of the robbery the said wounds or uses any personal violence to any person, the offender shall be liable upon conviction render this Act to be sentence to death.

Under the provisions of Section 6(a) of the Robbery and Firearms (Special Provisions) Act (Supra), the Prosecution (Respondent) has the onus of proving beyond reasonable doubt the following ingredients: (i) The existence an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; (ii) That the illegal act was done in furtherance of the agreement and that each of the defendants (accused) participated in the illegality. See ABDULLAHI VS THE STATE (2008) 17 NWLR (Pt. 115) 203 @ 221 Paragraph F; GBADAMOSI VS.

THE STATE (1991) 6 NWLR (Pt. 196) 182; AWOSIKA VS THE STATE (2010) 8 NWLR (Pt. 1198) 49 @ 78. In my considered view, Section 6 of the Robbery And Firearms (Special Provisions) Act (Supra) is virtually in pari materia with Section 8 of the Accessories And Abettors Act 1861, as amended by the Criminal Law Act

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1977 of the United Kingdom, which provides: “8. Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence of Common Law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.” In the case of R. VS.

GNANGO Appeal No. (2011) UKSC.59, the Supreme Court aptly postulated on the fundamental doctrine of Parasitic Accessory Liability (which is akin to the principle of Criminal Conspiracy): The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B in the course of committing it, D1 commits crime B which D2 foresees that he might commit… There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder.

All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they agreed to commit the offence, and (ii) a murder committed by D1 in the course of the affray commission of which is foreseen as a possibility … All the

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members of the group who foresee ….. that he might use the knife to commit a murder would also be liable for murder. The fact that they were also guilty of an affray would be no bar to their liability for murder. See R. VS. GNANGO (2011) UKSC 59; (2011) LPELR – 17863 (UKSC), Per Lord Dyson @ 67 – 68 paragraphs F – E.

For a conviction for the charge of armed robbery to creditably be sustained, the prosecution is equally required to prove beyond reasonable doubt the following ingredients: (i) That there was a robbery or series of robberies; (ii) That the robbery was armed robbery; and (iii) That the Defendant participated in the said armed robbery. See – THE STATE VS SALAWU (2011) 17 NWLR (Pt. 1279) 883; IKPO VS. THE STATE (2016) 10 NWLR (Pt. 1521) 501 @ 519.

​In the instant case, the judgment of the trial Court is contained at pages 138 – 160 of the record of appeal. The judgment of the Court below is contained at pages 271 – 304 of the record of appeal. With particular regard to the instant second issue, the finding of the Court below is at pages 293 -294 of the record.

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It was aptly found by the Court below (at pages 294 - 295 of the record) in regard to the instant issue, that the Appellant’s grouse was not that the armed robbery for which he stood trial did not take place at all, or that he was not involved therein. The only Appellant’s grouse was that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin. Likewise, the Appellant raised the issue of the date on the charge sheet being different (15/03/14) from the date given in evidence by the prosecution witnesses.

As copiously alluded to above, the Court below conclusively stated: Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014. There was no contradiction as to the date of this incident amongst the prosecution witnesses. I hold that the place of the incident being Awolowo Road, Tanke Area, Ilorin as opposed to Sawmill Garage, where the Appellant and his colleagues were arrested with the robbed car and other items and the date given in evidence as opposed to the date on the charge sheet are not enough reasons to absolve the

26

appellant of the offences charged. I hold that there was a nexus between the offences charged and the conviction of the appellant by the trial Court.”

In my considered view, the foregoing findings of the Court below are aptly cogent, unassailable and duly in league with the evidence on record. And I so hold. In the circumstances, the second issue is hereby resolved against the Appellant

ISSUE NO 3 The third issue raises the question of whether or not the Court below properly evaluated the conviction and sentence of the Appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act. 2004 (Supra), when the prosecution did no prove that the possession of the gun (Exhibit 2) allegedly found on him was prohibited under Sections 3, 4 and 5 of the Firearms Act CAP 28 Laws of the Federation, 2004. The third issue is distilled from ground 7 of the notice of appeal.

The trial Court at page 157 (lines 1 – 33) of the record, found as a fact, to the following effect: The gun and cartridges were tendered and admitted as Exhibits 2 and 3. PW3 said was pointed on his head

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by the 1st accused… PW3, said he was held at gun point, PW2 and PW5 said the accused in the stolen car fired a gun at them, the gun was recovered (when their bodies were searched) and it was tendered and admitted as exhibit 2. Section 2(2) (a) punishes an accused who though not in possession of firearm but he is in the company of a person is armed.

Therefore, in the case at hand, the fact that one of the accused was carrying gun, one of them was carrying axe (exhibit 4) which is an offensive weapon, the 1st – 3rd accused are involved in the offence of armed robbery contrary to section 1(2) (a) of the Act.”

On the part thereof, in affirming the foregoing findings of the trial Court, the Court below stated at page 303 (lines 8 - 14) of the record: In the present appeal, there is nothing on record to show that the appellant had a license to possess the gun he was found in possession of and I had held above that the gun falls within the definition of firearm under the Robbery and Firearms (Special Provisions) Act. The three ingredients stated above were established, therefore the conditions of the Act were met. The Appellant was rightly

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convicted for illegal possession of firearms.

Invariably, the term “firearm” denotes a weapon that expels a projectile (such as a bullet or pellets by the combination of gun powder or other explosive). Also termed gun. See BLACK’S LAW DICTIONARY 11th edition 2019 @ 778. Thus, by the foregoing definition, ‘a firearm’ is any kind of gun specifically designed to be readily carried and used by a person. Historically, the first firearms originated in the 10th century China, when bamboo tubes containing gunpowder and pellet projectiles were mounted on spears to make the portable fire lance.

This was operable by a single person, which was later used to good effect in the SIEGE OF DE’AN in 1132: Modern firearms can be described by their caliber (i.e bore diameter). For pistols and rifles this is given in millimeters or inches (eg. 7.62 mm or .38 in.), or in the case of short guns by their gauge (eg. 12 ga and 20 ga.)… A firearm is a barreled ranged weapon that inflicts damages on targets by launching one or more projectiles driven by rapidly expanding high pressure gas produced by exothermic combustion (deflagration) of

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chemical propellant, historically black powder, now smokeless powder. According to the United Nations International Protocol on Firearms: “Firearm” shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law.”

Originally, the ‘Dane gun’ was a type of long-barrelled flintlock musket imported into West Africa by Danish traders prior to the mid-18th century. The dane guns were used extensively within the slave trade period as goods to trade as well as a means of acquiring new slave. In 1671, the Danish Africa Company was incorporated (formally chartered by King Christian v on March 11, 1671): In the 17th and 18th centuries, the company flourished from the North Atlantic triangular trade routes.

Slaves from the Gold coast of Africa (Ghana) were traded for molasses and rum in the West Indies … Throughout the transatlantic slave trade, it is estimated that about 12.5 million Africans were taken

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captive and 10.7 million of them were transported to the Americas. The Danish slave trade constituted about 1 percent of this trade, with “about 100, 000 Africans embarked.” Denmark was reportedly the first European colonial empire to ban its slave trade in 1792 although this effect until 1803, and illegal trading continued into the nineteenth century. See WIKIPEDIA. Thus, against the backdrop of the far-reaching postulations, any lingering doubt regarding whether or not a ‘Dane gun’ is indeed qualified to be regarded as a ‘firearm’ within the purview of the law, ought to have been evaporated.

Hence, in my considered view, the concurrent findings of the Court below (at pages 303 lines 8 - 14 of the Record), to the effect that the trial Court rightly convicted the Appellant for the offence of being in possession of firearms are very much apt, cogent, unassailable, and duly supported by the evidence on record. In the circumstances, the third issue ought to be, and same is hereby resolved against the Appellant.

ISSUE NO 4 The fourth issue raises the question of whether or not the Court below understood and considered the

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complaint raised in issue No. 1 before it, and if not, whether the non-consideration of the issue occasioned a miscarriage of justice. The fourth issue is distilled from grounds 1 and 2 of the notice of appeal.

The Appellant’s grouse herein is primarily predicated upon the issue No. 1 raised in the appeal before the Court below viz: 1. “Whether the trial Court was right in convicting the Appellant and in placing on him the burden to prove his innocence. Grounds 2 and 9.”

The issue No. 1 in question was copiously alluded to at page 273 of the record of appeal. The Court below having extensively considered the said issue at pages 286 - 291 of the record, came to the finding to the conclusive effect: In all the above pieces of evidence, none constituted a serious plea of alibi with faces to warrant an investigation by the police.

Even if indeed the appellant was a DJ at Bovina Club and was on his way there when he was accosted by the policemen, it does not remove the possibility of the appellant having been of the scene of the crime at the time the alleged offences were committed … I hold that there were no facts to investigate. The

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Appellant’s defence of alibi fails, issue one is resolved against the appellant.

The evidence of the Appellant (DW1) was copiously alluded to by the Court below at page 287 (lines 8 - 15) of the record of appeal: I am a DJ and clock and wrist watches repairer. In year 2014, March, I wanted to go and play at Bovina Club along Yidi Road, Ilorin. I took an Okada (Commercial Motor Cycle). On our way, we were almost at Bovina Club when some policemen stopped us. I told the policemen that what was our offence because I was going to Bovina to play. I always go to Bovina Club every Friday to play as a DJ; may be am employee hut I go there only on Fridays.

​The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. It is essentially a defense predicated upon the physical impossibility of a defendant’s guilt by placing the defendant in (an entirely) different location other than the scene of the crime at the relevant point in time. Alibi invariably denotes the quality, state or condition of having been elsewhere at the material time an offence was committed. See BLACK’S LAW DICTIONARY 11th edition, 2019 @ 90.

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plethora of veritable authorities by this Court, that it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove or attempt to disprove same. Nevertheless, there is so far no particular inflexible or invariable way of disproving an alibi. If the prosecution adduces cogent, sufficient evidence to fix a person at the scene of crime at the material time the offence was committed, his alibi is thereby logically and physically crushed, thus rendering such a plea ineffective as a defence. See PATRICK NJOVENS VS THE STATE (1973) 1 NMLR 331; GACHI VS.

STATE (1965) NMLR 333; BELLO VS. THE STATE (1959) WRNLR 124; R. VS. TURNER (1957) WRNLR 34; NWABUEZE VS. THE STATE (1988) 7 SCNJ (Pt. 71) 248 @ 260. Most interestingly, all these authorities were followed by this Court in the latter case of CHRISTIAN NWOSU VS. THE STATE (1976) 6 SC 109 and a plethora of other cases, to the extent that the defence of alibi was ceased to be: The type of cheap panacea that it used to be in the hands of criminals. Now not only has the accused an evidential burden of eliciting some evidence with all necessary particulars which can be

34

checked to show that she was somewhere else at the time the offence charged was committed at the locus of the crime but also, if the prosecution investigates the alibi and call some evidence in disproof of it, the Judge not disregarding the defence of alibi, is yet entitled to consider it from the backgrounds of other stronger evidence, if any, linking the accused person with the crime charged. See NDUKWE VS THE STATE (2009) LPELR 1979 (SC) Per Ogbuagu, JSC @ 49 - 50 paragraphs E - F.

Most ironically, in the instant case, there is no doubt that the defence of alibi raised by the Appellant is baseless and a sheer after thought. The Appellant not only raised the purported alibi for the first time in Court, but he woefully failed to furnish the Court with particulars thereof. See SANI VS. THE STATE (2015) 15 NWLR (Pt. 14830 522 @ 546 Paragraphs E - G. In the circumstances, the fourth issue is hereby equally resolved against the Appellant.

Hence, having effectively resolved all the four issues raised by the Appellant against him, there is no gainsaying the fact that the appeal grossly fails, and it is hereby dismissed by

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me. Consequently, having dismissed the appeal, the judgment of the Court of Appeal Ilorin Judicial Division, delivered on May 18, 2018 in appeal No. CA/IL/C/19/2017, ought to be and same is hereby affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC and to register the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Ilorin Division or Court below or lower Court, delivered on the 18th day of May, 2018. The appeal is sequel to the decision of the High Court of Kwara State delivered on the 30th of September, 2016 per Folayan J, which convicted and sentenced the appellant to death for the offences of conspiracy contrary to Section 97 of the Penal Code and Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act 2004 respectively.

The appellant was also convicted and sentenced to ten years imprisonment for illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act.

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The charge reads: ​COUNT ONE: That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu on or about the 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this of this Honourable Court conspired to commit an illegal act to wit: while armed with gun, robbed one Shittu Kamaldeen of one Kia Rio Saloon car with some other valuables and you thereby committed an offence contrary to Section 97 of the Penal Code.

COUNT 2 That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu, Mustapha Wasiu on or about the 153/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: unlawful possession of firearms and you thereby committed an offence contrary to Section 3(1) of the Robbery and Firearms (Special Provision) Act. Cap.R11 Laws of the Federation of Nigeria 2004.

COUNT THREE That you Abdullahi Lanre, Mahmud Ridwan, Idowu Makanjuola, Tunde Sheu on or about the 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: while armed with gun robbed one Shittu Kamaldeen of one

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Kia Rio Saloon car with some other valuable and you thereby committed an offence contrary to Section 1(2) of the Robbery and Firearms (Special provision) Act Cap. R11 Laws of the Federation of Nigeria 2004. COUNT FOUR That you Mustapha Wasiu on or about 15/3/2014 at Sawmill Garage Area Ilorin, Kwara State within the jurisdiction of this Honourable Court committed an illegal act to wit: Receiving stolen property contrary to Section 5 of the Robbery and Firearms (Special provision) Act. Cap. R11 Laws of the Federation of Nigeria 2004.

The Appellant who was the 2nd Defendant at the trial High Court is dissatisfied with the judgment of the Court of Appeal Coram:- … hence by a notice of appeal filed on 18/07/2019 appealed to this Honourable Court on Eight grounds.

FACTS The case of the prosecution: The case of the prosecution is that on the 5th of March 2014, the Appellant together with three other persons at about 11.30pm at Awolowo Road, Tanke Junction, Ilorin, Kwara State flagged down their victim, one Kamaldeen Shittu with a torch light. At the material time, the said Kamaldeen Shittu was driving a Kia Rio with registration

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number FFA 626 AA. Thinking that he was coming across policemen on duty Kamaldeen stopped the vehicle. As soon as he stopped the vehicle, one of the Defendants pointed a gun on his head and the other slapped him. They requested for his car key which he surrendered to them at gun point. The complainant was sitting in the middle of the road when some policemen on patrol saw him and enquired from him why he was on the road sitting at that time of the night. He told them the story of how his car was snatched from him by the gang of robbers.

The policemen sent a radio message to their office and other officers on patrol were informed. Barely 45 minutes after the incident, some officers on patrol duty saw a Kia Rio at the Sawmill Garage packed with four men inside the vehicle. They accosted them and in the course of which one of them pulled a trigger but he was shot by one of the officers. The policemen arrested all of them and they were charged to the Court.

The Appellant herein was initially charged as the 3rd Defendant but ended up as the 2nd Defendant upon the withdrawal of the charge against the initial 2nd Defendant who was confirmed insane and unable to

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stand his trial.

THE CASE OF THE APPELLANT According to the Appellant, he is a DJ at Bovita Hotels and a wrist watch repairer. He was on an Okada (bike) going to Bovina hotels when he was arrested on the Okada (commercial motorbike). He was almost at the hotel when the police stopped them and asked them to come down. The police seized the bike and put the Appellant in the police vehicle and drove him to the station. On the second day, the police asked if he had relation in Ilorin and he said yes. They gave him his phone and asked him to call his relatives to come for his bail.

On the arrival of his sister at the station, the police demanded for the sum of N100,000 and informed her that if she refused to pay they would charge him to Court. The sister could not pay and hence the charge. In effect, the Appellant denied knowing anything about the robbery incident and relied on a case of extortion against the police.

THE HEARING The prosecution called five witnesses and tendered several exhibits including a locally made gun allegedly used by the appellant and his co-accused. The gun was admitted as an exhibit 2.

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The appellant testified on behalf of himself but did not call any other witness.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, M.I. Hanafi Esq adopted the brief of argument filed on 29/5/2020 and deemed filed on 24/9/2020 and a reply brief filed on 17/11/2020.

He distilled four issues for determination which are thus:- (i) Whether the Court of Appeal rightly affirmed the condition of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial; distilled from ground 6 of the grounds of appeal. (ii) Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regards to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial.

Grounds 3, 4,5 and 8; (iii) Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearms under Section 3(1) of the Robbery and Firearms (Special Provision Act) 2004

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when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act cap 28 laws of the Federal 2004; Ground 7. (iv) Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice. Grounds 1 and 2.

The learned Director of Public Prosecutions, Kwara State (DPP) for the respondent adopted the brief of argument filed on 9/11/2020 and he adopted the issue donated by the appellant.

ISSUE ONE Whether the Court of Appeal rightly affirmed the conviction of the appellant in view of the admission of the evidence tending to show the bad character of the appellant at the trial. Canvassing the position of the appellant, learned counsel submitted that the prosecution subjecting the appellant to answer questions during cross-examination tending to show that the appellant is a hardened and habitual criminal or given to acts of armed robbery which were irrelevant and inadmissible in law under Section 82 of the Evidence Act. ​

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That those pieces of evidence influenced the learned trial judge as he relied on them and the decision thereby reached ought to have been set aside by the Court below hence the Supreme Court should right the wrong. He cited Vivian Odogwu v The state (2015) 14 NWLR (pt. 1373) 74 at 107 etc.

For the respondent, the learned DPP contended that assuring without conceding that the learned trial judge admitted inadmissible evidence in the form of Exhibit DWC1, the question is whether the admission occasioned a miscarriage of justice in the peculiar circumstances of this case which is in the negative. He relied on Ugbola v Fashawe (2005) LPELR – 3057 (SC).

That Exhibit DWC1 and the questions relating to the fact that appellant and his cohorts were standing trial in other Courts for the issue by the conduct of the appellant himself contrary to the position now brought up by the appellant. That appellant’s counsel had told the Court that appellant who was on bail was not present on the particular day proceeding because he had been arrested and in custody in respect of another offence.

​Learned counsel for the respondent submitted

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that there was no objection from appellant’s counsel when those questions were asked and the answers rendered at the trial Court. He cited Lawal v The State (1966) 1 All NLR 107 at 110 – 113.

That even if the said inadmissible evidence was expunged, there is a lot of evidence upon which the conviction would be supported and there was no miscarriage of justice. He cited Okaroh v The State (1990) LPELR – 2422.

The grouse of the appellant herein has to do with whether the evidence of bad character elicited from the appellant and his co-defendant during their cross-examination is permissible and admissible in evidence and if it was not fatal to the case of the prosecution. The response at the base of this issue is thus:- “It is true I was arrested for another case of armed robbery apart from this one. It is true that two of the people that we are standing trial before this Court are also co-accused with me in that other case, but that case stems out of this case.

I don’t know the 2nd accused before, 3rd accused is not my friend and I have never seen the face before. It is true 2nd and 3rd accused are co-accused with me in the other case but I don’t

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know their names”. The appellant was the 2nd accused at the trial Court.

In response to another question, the appellant answered thus:- “I have never met the police who told me to sign before. It is not true that gun was recovered from me. It is true I have another case of armed robbery against me before another Court”.

The prosecution also tendered through the 1st defendant, exhibit DWC1 which is the charge sheet in another case NO.KW5/7C/2014 where appellant and others were charged for another robbery incident. This, the appellant contends prejudiced him and therefore fatal to the prosecution’s case and the Court below should have set aside the conviction of the appellant.

The respondent disagreeing with that view of the appellant contends that the conviction upon the other evidence available would still have been secured without the evidence procured during the cross-examination of the appellant including the admission of the charge sheet, DWC1. That a miscarriage of justice had not taken place on that admission.

​In resolving this question, it has to be stated that the admission of an inadmissible evidence simpliciter does not

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fatally affect a case without none. The inadmissible evidence has to be considered in context, that is to say that the appellate Court would take a look at it to see if indeed it is inadmissible and if it is what would happen to the rest of the case were it to be expunged.

That is if there is any remaining legal evidence to sustain the charge or the claim before the trial Court, this is in consonance with the principle that the wrongful admission of evidence shall not necessarily or totally affect the decision of the Court unless the use of the alleged evidence occasioned a miscarriage of justice. See Ugbala v Okorie (1975) 12 SC 1 at 22 per Musdapher JSC (as he then was); Shittu v Fashawe (2005) LPELR – 3057 (SC).

In this case at hand, it has to be said that Exhibit DWC 1 and the question relating to the fact that the appellant and his cohort were standing trial in another Court for the same offence did not come out of the blues as it was in the conduct of the appellant himself that brought that into the arena. From the record, before the day on which the proceedings leading to the vexed cross-examination took place, the appellant had been absent in

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Court as he was on bail and the excuse given by the counsel for the absence on that 20th day of October, 2015 was that “he has been arrested and in custody in respect of another offence”. ​I agree with learned counsel for the respondent that when the question under cross-examination was put to the appellant, his counsel put up no objection.

That on its own does not translate to an inadmissible evidence being made admissible merely because counsel raised no objection when the evidence sought to be brought in, since the trial Court has a duty to step in to stop an inadmissible evidence being allowed in.

However, where such evidence not objected to and not stopped from being admitted by the trial Court has been admitted, the appellate Court has to be careful in allowing an appeal on the ground of reception of inadmissible evidence since the appellate Court has to weigh how the inadmissible evidence has impacted the case and if it had caused a miscarriage of justice. This is because there may be other independent, cogent and credible evidence upon which the conviction of the appellant would be affirmed by the lower Court outside the inadmissible evidence

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which, supports and establish the case of the respondent beyond reasonable doubt. See Lawal v The State (1966) 1 All NLR 107 at 110 – 113. The dictum of this Court in a similar situation settled the issue. See NNEMEKA AGU JSC in OKAROH V THE STATE(1990) LPELR 2423, held thus:- “I believe that the complain in this case can be more appropriately described and categorised as a wrongful reception of evidence. The principle applicable in such cases is settled.

I should, as it were, run a blue pencil line cross the piece of evidence which has been wrongfully admitted and see whether, if the learned trial Judge has disregarded it, he could have reached the same conclusion. If I can positively say that he would have reached the same conclusion, then the wrongful admission of evidence is not one upon which an appeal should be allowed. See Section 226 (1) of the Evidence Act; R V THOMAS (1958) 3 FSC 8.

This is yet another particular illustration of the general principle emphasised in OKEGBU VS THE STATE (1979) 11 SC 1, that a mere technical error by the Lower Court which has not embarrassed or prejudiced the Appellant or caused a miscarriage of justice

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is not a ground for which an appeal should be allowed.”

​The answer to the question earlier posed is that the admission of the answers on bad character of the appellant firstly was not prejudicial to him, the foundation thereof having been brought in by himself through his counsel. Even if it was inadmissible, it would not fatally affect the case of the prosecution as other pieces of evidence are sufficient to secure a conviction if the evidence in dispute is expunged. I resolve this issue against the appellant.

ISSUE TWO Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the difference in the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial.

For the appellant, it was submitted that there is a fundamental conflict between the offence he was charged with and the offence proved at the trial and upon which he was convicted which breached the provisions of Section 196 of the ACJA and also a violation of Section 36 (6) of the Constitution  ​

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relating to fair hearing. He relied on Ibrahim v The state (2015) 11 NWLR (pt. 1469) 164 at 187 etc.

That the circumstances of the different date in the particulars in the charge and the offence proved showed that the prosecution had not discharged the burden of proof beyond reasonable doubt.

Countering the stance of the appellant, learned counsel for the respondent stated that the prosecution established the case beyond reasonable doubt and it is not as the appellant expected to be that proof beyond all shadow of doubt. He cited Oteki v A.G. Bendel State (1986) 6 NWLR (pt. 24); Mbachu v The State (2018) 17 NWLR (pt.1649) 395 at 404 & 405 etc.

That there is no conflict between the offence proved and the accused/appellant was not misled. He cited Section 206 of the Criminal Procedure Code, the law applicable at the time of the commission of the offence and trial.

In answer to the question raised in the issue under discourse, it was to be said that whenever anybody is charged with the commission of a criminal offence, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt by virtue of

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Section  138 of the Evidence Act. The burden on the prosecution to prove the offence against the accused is one that does not shift and includes the duty to prove all the ingredients of offence beyond reasonable doubt. Itu v The State (2016) 5 NWLR pt 1506, 443, at 465f, Eromosele V. F.R.N (2017) 1 NWLR pt. 1545, p.55 at 89f, Ibrahim v The State (2008) 17 NWLR pt.1115, 203 at 221e, Famakinwa V The State (2016)11 NWLR pt.1524, 538 at 560c.

The Appellant in this case is charged with the offence of Conspiracy and Armed Robbery contrary to Sections 6 and 1(2) of the Armed Robbery and Firearms (Special Provision) Act 2004.

The Sections provide: Section 6(a) “Any person who- (a) Aids, counsels, abets or procure any person to commit an offence under Sections 1, 2, 3 and 4 of this Act, or (b) Omitted; (c) Omitted; Whether or not he is present when the offence is committed or attempt to be committed, shall be deemed to be guilty of the offence as a principal offender, and shall be liable to be proceeded against and punished accordingly under this act”.

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

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provides: “Any person who commits the offence of robbery shall upon trial and conviction under this Act be sentenced to imprisonment for not less than 21 years; Section 1 (2) if- (a) Any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or (b) At or immediately before or after the time of the robbery, the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.”

To succeed in proving the commission of the offence of conspiracy under Section 6(a) of the Robbery and Firearms Act, the Prosecution has a burden to establish the following ingredients: (i) The existence of an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; (ii) That the illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality. See Abdullahi v The State (2008) 17 NWLR (pt. 115) 203 at 221.

A conviction for the offence of armed robbery

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can only be obtained if it is proved that: (i) there was a robbery or series of robberies; (ii) That the robbery is armed robbery; and (iii) That the accused participated in the robbery. See (i) State V Salawu (2011) 18 NWLR pt. 1279 883 at 617b (ii) Ikpo V The State (2016) 10 NWLR pt. 1521 501 at 519.

The complaint of the Appellant under this issue is that the Respondent failed to prove the offence charged. The basis of the contention of the appellant is that there is a fundamental conflict between the offence he was charged with and the offence proved at the trial. According to the Appellant, the robbery he was charged with from the particulars of the offence is the robbery allegedly committed at the Sawmill Area, Ilorin on the 15/03/2014 but the robbery proved by all the prosecution witnesses is the one that took place at Awolowo Road, Tanke Area, Ilorin on 05/03/2014.

On account of the variance in both the dates and the venue of the alleged robbery, the respondent could not have proved the offence with which he was charged, the Appellant contended. The first point that must be made is that it is a constitutional

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duty imposed on the prosecution to inform an accused promptly of the nature and details of the offence he is alleged to have committed by virtue of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999. This duty is one imposed to enable the accused adequately prepare for his defence and to guarantee the accused a fair hearing in the defence of the offence allegedly committed by him.

It can hardly be argued that one of the surest way of securing the fair hearing of an accused is the provision of Section 109 of the Administration of Criminal Justice Law which provides for the institution of a criminal trial by way of information or by filing a charge.

The charge or information is, according to the provisions of Section 203(1) of the said Law, to contain such materials like the time, the date and the place where the offence was committed “as are reasonably sufficient to give the Defendant notice of the offence which he is charged with”. ​It is true that an accused is entitled to be furnished with the time, date and place of the offence and the count and the parties bound by the charge laid against the appellant and to which he pleaded.

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See Sani v The State(2015) 15 NWLR (pt.1482) 522 at 550.

In this case, a charge was filed by the prosecution alleging that the offence took place at Sawmill Area on the 15/03/2014. In proving the said offence, the prosecution called five witnesses all of whom testified that the robbery was committed at Awolowo Road, Tanke Area, on the 5/03/2014, a place and date different and distinct from the venue and the date of the offence charged. The Appellant was convicted for the offence proved at the trial which conviction was affirmed by the Court below.

The appellant contended that the conviction not only breached the provision of Section 196 of ACJA but it is a fundamental violation of the Section 36(6) of the Constitution relating to fair hearing to be accorded to an accused and from which Section 196 derived its potency. Section 196 therefore has a constitutional force. Learned counsel for the respondent contends that inspite of the disparate dates and place, that the prosecution proved the offence of criminal conspiracy and armed robbery against the appellant beyond reasonable doubt.

The point has to be made that the variation in date and place of the

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robbery would not in the peculiar circumstances of this case be regarded as fundamental when viewed from the fact that nothing on record has shown that the appellant was misled or that the differences in date and place occasioned a miscarriage of justice.

The Court below properly considered the situations and held as follows:- “As rightly observed by the learned Solicitor General, the Appellant’s grouse under this issue is not that the armed robbery he stood trial for did not take place or that he was not involved but, that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin.

The important thing is that it is the same chain of events that started at Awolowo Road that ended up with the arrest of the Appellant and his colleagues by the policemen who testified as PW1, PW2 and PW5. It is noteworthy that the evidence of the prosecution witnesses was consistent as to the place or venue of the armed robbery incident to be Awolowo Road, Tanke Area, Ilorin while the gang was arrested at Sawmill Garage Area, where they escaped to, some minutes after the operation with the car and

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items robbed at Tanke. Similarly, the learned counsel to the Appellant raised the issue of the date on the charge sheet being different (15/3/2014) from the date given in evidence by the prosecution witnesses. I would adopt the same reasons as above that the Appellant ought to have objected to the date on the charge sheet before plea was taken. Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014.

There was no contradiction as to the date of the incident amongst the prosecution witnesses.” That consideration of the Court below is proper as the matter cannot be viewed in a narrow prison but in context with other surrounding circumstances and the substantial interest of justice.

See Section 206 of the Criminal Procedure Law which was the law applicable at the time of the commission of the offence and the trial. ​Again to be brought in, is that the defence did not raise any objection at the alleged omission before the trial Court hence it is untenable to bring it up at the Court of Appeal and there is no linkage between the omission and the fundamental rights of the

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appellant pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999. Also the appellant was not misled and justice was served.

ISSUE THREE Whether the Court of Appeal properly affirmed the conviction and sentence of the appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, found on the appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004. Learned counsel for the appellant contended that from the definition of the offence, mere possession of firearms is not an offence.

He cited Sections 2, 3, 4 &5 of the Firearms Act; Bille v. The State (2016) 15 NWLR (pt.1536) 363 at 387.

That the evidence of a ballistician or a ballistician report is necessary to secure a conviction for illegal possession of the gun since a locally made gun may be a muzzle-loading gun or lesser gun.

​Learned counsel for the respondent submitted that a firearm, albeit a locally made gun or any other gun

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must be capable of firing ammunition which is what distinguishes it from other artifice. He cited Jiya v The State (2020) 13 NWLR (pt. 1740) 159 at 205; Section 2 of the Firearms Act Cap 146 Laws of the Federation 1990.

The learned justices at the Court below had held thus:- “In the present appeal, there is nothing on record to show that the Appellant had a license to possess the gun he was found in possession of and I had held above that the gun falls within the definition of “firearms” under the Robbery and Firearms (Special Provision) Act. The three ingredients stated above were established; therefore the conditions under the Act were met. The Appellant was rightly convicted for illegal possession of firearms.”

I agree with learned counsel for the respondent that the conclusion of the learned justices of the Lower Court represent the settled position of the Law on this issue.

It is my considered humble view that a firearm, howbeit a locally made gun or any other gun, must be capable of firing ammunition. The characteristics of firing ammunition is the original function of a gun or firearm. That is what distinguish it from other

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artifice. See JIYA V THE STATE (2020) 13 NWLR (PT.1740) 159 at PAGE 205, PARAS E-F. By virtue of Section 2 of the Firearms Act Cap 146 Law of the Federation 1990, a firearm is any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharge and includes a prohibited firearm, a personal firearm and a muzzle-loading firearm of any of the categories referred to in parts I, II, III respectively of the schedule to the Act, any component parts of such firearm.

From the provision of Section 2 of the Firearm act referred to above, any lethal barrelled weapon of any description qualifies as a firearm provided it can shoot a pellet. That provision of the law only expanded the realm of prohibition to include muzzle loading firearm of any of the categories referred to in parts I, II, III respectively of the schedule to the Act. There was uncontroverted evidence that Exhibit 2, the locally made gun was fired at the point of arrest of the appellant and his cohorts.

No better evidence to portray the use the appellant and his cohorts put Exhibit 2 at the scene of arrest. ​The learned trial judge on page 157

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of the record found thus:- “PW3 said he was held at gunpoint, PW2 and PW5 said the accused in the stolen car fired a gun at them, the gun was recovered when their bodies were searched and it was tendered and admitted at Exhibit 2.” The whole argument of the Appellant on whether Exhibit 2 was a prohibited firearm within the meaning of the Firearm Act is a loose argument with no reasonable end.

This is because even by the express provision of Firearms Act Cap F28 Laws of the Federation of Nigeria 2004 copiously referred to by the Appellant in his brief, PART I item 8 of the schedule to the Firearms Act prohibited “Any other firearms not specified in Part II or III of the Schedule.” PART II therefore also prohibits:- “Short guns other than:- (a) Automatic and semiautomatic short guns; and (b) Short guns provided with any kind of mechanical reloading device.

The argument of the appellant on whether or not a locally made pistol is within the prohibited firearms are none fliers and of no effect, since the subject is well within what had been prohibited by law. See Firearms Act, Cap C28 Laws of the Federation 2004.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The issue is resolved against the appellant.

ISSUE FOUR Whether the Court of Appeal misunderstood and considered the complaint raised in Issue 1 before it and if not, whether the non-consideration of the issue occasioned a miscarriage of justice. Learned counsel for the appellant stated that this issue 4 is a complaint on the manner of approach of the Court below to issue 1 raised before it. That at the trial, the whole defence of the appellant relates to the fact that the appellant is a D.J. player at Bovina Hotel and also wrist watch repairer which the Court below treated as an alibi and not raised timeously rejected it.

That this breached the appellant’s right to fair hearing and renders the trial, a nullity. He cited Adigun v A.G. Oyo State (1987) 2 N WLR (pt.56) 197 etc.

The learned counsel for the respondent contended that what the Court below used was an approach that would enable it resolve the questions before it on appeal. That the Court below had the power to reformulate issues or adopt the issue or issues drafted by any of the parties where same would enable it do justice to the appeal. He relied on Omoworare v Onwore (2010)

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3 NWLR (pt. 1180) 58 at 80 etc.

The appellant’s complaint is that the defence he put up relates to the fact that he is a DJ player at Bovina Hotel and also a wrist watch repairer and the two Courts below did not consider the defence connoted.

At the trial Court, the appellant had testified thus:- “I am Idowu Makanjuola, I live at Okelele Ilorin. I am a D.J and clock and wrist watches repairer. In year 2014 March I wanted to go and play at Bovina Club along Yidi Road, Ilorin. I took an Okada (commercial motorcycle). On our way we were almost at Bovina Club when some policemen stopped us. I told the policemen that what was our offence because I am going to Bovina to play. They asked both of us to come down or they would beat us”.

While considering the case against the Appellant (who was the 2nd accused at the trial), the learned trial judge at the last paragraph of pages 155 stated: “The 2nd accused’s evidence that he was a D.J. at Bovina Club is not substantiated, nobody was called from Bovina to testify that the 2nd accused is their DJ.

​The above portion of the judgment of the trial Court came under attack at the Court below as

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issue 1 before it. For ease of reference the issue reads: “whether the trial Court was right in convicting the Appellant and in placing on him the burden to prove his innocence.”

In addressing the issue, the Court below at page 288 of the record held: “The learned Counsel to the Appellant alleged that the trial Court had placed the burden on the Appellant to prove his innocence when the trial Court found that the Appellant did not substantiate his evidence that he is a D.J at Bovina Club by calling someone from the club to testify. It had been argued that for the prosecution to prove its case beyond reasonable doubt it ought to have visited the Bovina Hotel to ascertain whether the appellant was a D. J. there or not.

This was said to have created doubt in the prosecution’s case. Exhibit D1 the extra judicial statement of the Appellant made to the police was the earliest opportunity for the Appellant to have given details of his being elsewhere when the offences were committed. The appellant ought to have given details of his presence as D.J. at Bovina Hotel at the time the alleged offence were committed, the people he was with, those who saw

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him at the hotel and who could say for sure that he was at the hotel that night doing his work. Enough particulars must be given which would start off the police investigation on the alleged alibi. All that was on exhibit D1 was under “occupation” at the heading D.J. player. Nothing else was said in the body of exhibit D1. At page 126 of the printed records in the appellant’s evidence at the trial, as Dw2 he testified as follows:……”

Further at page 127 of the record, the Appellant testified thus: “I always go to Bovino club every Friday to play as a D.J., may be am employed but I go there only on Fridays” The Court below stated further thus: “The mere stating in Exhibit D1 under occupation that he is a DJ is not enough for the police to investigate without detailed particulars such as the days and hours he works, that would show that he could not have been at the scene of the alleged crime at the time but rather where he says he was. In this case nothing was said.

Further at the trial the appellant testifying that he used to go to the bovina club as DJ on Fridays is not enough also, that he was on his way to Bovina Hotel

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Club when he was arrested by the police at Yidi Road Ilorin is not what could further be investigation by the police. It is settled law that for the defence of alibi to avail an accused person, the defence must be raised by him at the earliest opportunity so as to give the police enough time to investigate it and offer evidence in rebuttal or in support of it.”

The appellant contends that from the excerpt of the judgment of the Court below, it cannot be denied that the defence had not been raised timeously, the Court below rejected the said alibi. That the Court below, misconstrued the pivot of the appellant’s complaint before them.

From the furore of the complaints of the appellant which seem more academic than based on legal principles, it needs be restated that the Court of Appeal has a wide unfettered discretionary power to formulate its own issues in the interest of Justice, provided they relate to the grounds of appeal and flow therefrom. Stated in other words, an Appeal Court can formulate its own issues where in its opinion, the issues formulated by the parties would not justify or equitably dispose off the appeal before it. Further

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still, an Appeal Court can also with in the same manner, prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. See OMOWORARE VS. ONWORE (2010) 3 NWLR (PT. 1180), 58 AT 80; AGBARE VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.

What the learned justices of the Court of Appeal did was the most proper in the peculiar circumstances of this case. The defence is nothing short of raising an alibi in the face of a clear and direct allegation of armed robbery.

Alibi means the fact or state of having been elsewhere when an offence was committed. It also means, I was not present when what is complained about happened. See AYAN vs. THE STATE (2013) 15 NWLR (PT. 13766) 34.

The appellant in raising his defence to the commission of the offence and anchored on the fact that he was a DJ and wrist watch repairer and that in the year 2014 March, referring to the date of the commission of the crime he was on his way to Bovina to play when the police arrested him for a crime in his view he did not commit in his view.

​In raising the defence, appellant was obligated to meeting the legal

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requirements of such a plea which entails that he had to furnish the necessary particulars to the police who would embark on the investigation of either confirming the alibi or debunking it. Therefore, failure to make available those needed details translated to be alibi in the first place was within his personal knowledge and the details must be furnished at the earliest opportunity. See Sani v The State (2015) 15 NWLR (pt. 1483) 522 at 546.

It is to be noted that the appellant raised his defence of alibi for the first time in Court at the point of his defence while testifying and so the Court below was on firm footing to have affirmed the decision of the trial Court on the issue. Clearly the fair hearing right of the appellant was not breached. I resolve the issue against the appellant.

All the issues are resolved in favour of the respondent and against the appellant, the appeal lacks merit and I dismiss it. I abide by the consequential orders made. Appeal Dismissed.

JOHN INYANG OKORO, J.S.C.: The facts giving birth to this appeal are that the Appellant together with three other persons robbed one Kamaladeen Shittu of his Kia

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Rio car at Awolowo Road, Tanke Area, Ilorin around 11:30 pm on 5th March, 2014 while the victim was on his way home. The car was recovered from the Appellant and his cohorts by a team of police men on patrol at sawmill garage, Ilorin barely 45 minutes after the robbery incident. Items recovered from the car in their possession were all the contents of the car as previously mentioned by the victim intact. Also recovered were 2 live cartridges, a locally made pistol, which the Appellant admitted belonged to him, and a small axe.

At his arraignment at the trial High Court of Kwara State, the charge read to the accused persons indicated that the offence was committed at Sawmill garage instead of Awolowo Road, Tanke Area, Ilorin whereupon they all pleaded not guilty. At the close of trial, the Appellant was convicted for illegal possession of firearm, conspiracy to commit armed robbery and armed robbery. He was sentenced to death accordingly.

His conviction and sentence was affirmed at the Court below hence his further appeal to this Court on 8 grounds from which he distilled four issues for determination.

​I must at this juncture state that my