Burden Of Proof

Before Their Lordships

Between

AND

Appearances

AND

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, Contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra-judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (3rd Accused) is aggrieved with his conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file his brief of argument. The brief of argument settled by his counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021.

The appellant filed a reply brief on 24/1/22, and deemed properly filed on 9/2/21. ​The briefs of argument were adopted on 24/01/22.

In the appellant’s brief of argument, the three issues were identified for determination: (I) Whether the prosecution investigated the defence of alibi raised by the appellant on this charge and the effect of failure to do that in the circumstances of this case. (II) Whether the prosecution proved this charge against the appellant beyond reasonable doubt to warrant his conviction of it. (III) Whether the trial Court properly evaluated the evidence before him concerning the Appellant.

The respondent in her brief of argument formulated two issues for determination to wit: – (I) Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant as a party to the offence, his plea/defence of alibi having failed. (II) Whether in view of the well considered facts and proper evaluation of the evidence(s) before the lower Court, the judgment of 18/2/2013 is not a fair judgment and ought to be sustained. ​Argument on the issues It is contended by the appellant that where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt.

It is submitted that the essential ingredients of the offence of murder are:- (a) That the deceased died. (b) That the death of the deceased was caused by the accused. (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The case of Michael v. State (2008) All FWLR (Pt. 431) 875 was referred to. Counsel drew the attention of the Court to the holding of the Court which was the basis of his conviction.

The Court said: “He (appellant) knew how the 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got his wound. I am convinced that he was a party to the killing of the deceased”. ​Counsel submits that there is no material evidence before the Court which satisfies the requirement of proof beyond reasonable doubt. It is further submitted that DW4 (1st accused) confessed that he killed the deceased. That in addition, the appellant set up alibi which was not investigated by the police.

This is in addition to the fact that the evidence against the appellant is weak. It is contended by the appellant that he set up the defence of alibi, and stated where he was, which is, elsewhere other than where he was alleged to have committed the offence. That he thus discharged the evidential evidence on him, by providing details of where he was but the police did not bother to investigate it. The prosecution, counsel submits did not lead any strong evidence connecting the appellant with the commission of the offence. That they did not debunk the alibi that he raised.

On the effect of a failure to cross-examine a witness on a material fact, it is submitted that the implication is that the adversary accepts the matter as led in evidence. Reliance is placed on the case of Oforlete v. The State (2009) 8 ACR, Vol. 8 page 398. It is further submitted that the standard of proof required to establish alibi is one based on balance of probabilities. Further on alibi, the cases cited, include Obalum Anakwe v.

The State (1976) 10 SC 225 p. 264. ​Submits that before a Court may draw inferences of guilt, it must be sure that there are no other co-existing circumstances that would weaken such inference. Counsel refers to the aspect of the trial Court’s judgment where the learned trial Judge allegedly found that the appellant was neck deep in the whole episode of the murder of the deceased, and submitted that none of the prosecution witnesses mentioned anything like that in their various statements to the police in the course of investigation or in Court.

Submits that the appellant should be entitled to the benefit of doubt where doubt is created by the inability of the police to investigate the alibi raised at the earliest time. Reliance is on the case of The State v. Aibanbee & Anor (1988) 7 SCNJ 128. The Court is therefore urged to discharge and acquit the appellant having allowed the appeal. Respondent’s counsel submits that the ratio decidendi of the judgment is not the trial Judge’s statement that the appellant was neck deep in the whole episode.

The ratio decidendi, counsel submits is that the appellant was a party to the killing of the deceased. Referring to the alibi set up by the appellant counsel submits that the alibi at one breath removed him from home on the date of the incident and in another placed him at home throughout the day of the incident. That inherent in the alibi is contradiction, which counsel submits is material. That in this instance, the Court cannot pick and choose which evidence to believe and which to disbelieve.

On the issues submitted by the appellant for determination, it is submitted for the respondent that why one of the three issues was argued while the other was abandoned. Revisiting the defence of alibi raised by the appellant, it is submitted by respondent’s counsel that the appellant raised it and went to sleep without establishing it. In further argument to support appellant’s conviction, it is submitted for the respondent that the appellant took part in the offence, and cites in support Section 7 (a), (b), & (c) of the Criminal Code. Also cited is George v.

FRN (2011) 10 NWLR (Pt. 1254) 1. ​Counsel pointed out that DW2, John Emesiobi convened a meeting at his house where the 1st accused (appellant’s brother) and other accused persons were present and conspired to kill the deceased. That the mere fact that the appellant was not present physically at that meeting is not conclusive that he is innocent or not part of the conspirators to the offence. Explaining further the concept of conspiracy, the Court is referred to the case of Oyediran v. Republic (1967) NMLR 122. Submits that the elements that define conspiracy are found in the instant appeal.

Specifically, counsel refers the Court to pages 77–95 to the evidence of PW1 as to what the appellant did on the day the body of the deceased was retrieved during the search. That the appellant drew the attention of the search team to the direction that the deceased body was found in the bush. That the evidence of PW1 as to what the appellant did during the search was corroborated by the evidence of PW2 (Edwin Nwabueze Ndukwu) who it was that reported and invited the police. That the appellant was heard to say – “Bianu ebe oo”, and when he was asked what happened, he was mopping at them.

That the defence did not cross-examine the witness on that piece of evidence, therefore, counsel submits that Court is entitled to accept and act on it, the case of Patrick Oforlete v. The State (2000) All FWLR (Pt. 12) 2081 was cited in support of this submission.

It is contended that the 1st, 3rd and 5th accused persons are siblings. Therefore, counsel submits it stands to reason and commonsensical that the 1st accused intentionally pleaded guilty to the offence and claimed that he did it alone to save his other siblings. The law, further submitted by counsel is trite that sentiments no matter how well crafted commands no place in law. Submits that the judgment is without fault and is a product of proper evaluation of the evidence before the Court which the trial Judge rightly ascribed probative value to.

It is therefore contended that the judgment is not perverse. On the proper Court that can evaluate evidence being the trial Court, not a few cases are cited, and they include Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 paras F–A, Ratio 7; Shamaki v. Baba (2000) All FWLR (Pt. 26) 1878 at 7888, paras D–E, ratio 6, Okala v.

Udah (2019) All FWLR (Pt. 1021) 203 at 231 to 232 paras B–A, P. 206; to mention but some. ​Therefore, counsel submits, the evaluation of evidence on record having been properly and rightly done, and probative values ascribed thereto, the appellate Court is deprived of the vires to interfere with it. All the submissions of the appellant’s counsel should be discountenanced, it is further contended for the Respondent. The Court is therefore urged to dismiss the appeal as same is lacking in merit.

RESOLUTION: All the issues formulated and argued by the appellant and the respondent coalesce to one broad issue, which is, whether the charge of murder was proved beyond reasonable doubt against the appellant to warrant his conviction. A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: – Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v.

FRN (2019) LPELR–46947 (SC) P. 12. ​It has also been established in law that the guilt of an accused person can be proved in three ways, to wit: (I) By eye witness account of the Commission of the offence, (II) By confessional statement of the accused person, (III) By circumstantial evidence. The following judicial authorities are instructive: James Afolabi v. The State (2016) LPELR–40300 (SC), PP. 51–52 paras F–B, Demo Oseni v. The State (2012) LPELR–7833 (SC), P. 41, paras B–C, Darlington Eze v. FRN (2017) LPELR–42097 (SC), P. 63, paras C – E.

A careful review of the evidence adduced in this case reveal quite clearly that there is no eye witness account of anyone who saw the appellant either by himself alone, or acting in concert to murder the deceased, Chief (Sir) Augustine Ndukwu. It is also correct to state that the appellant did not confess to the murder of the deceased. Apart from there being no evidence on record to the appellant either murdering the deceased or confessing to his murder, the judgment of the trial Court, particularly the finding attest to the position which I humbly hold.

The learned trial Judge at pages 294–295 made the following findings concerning the 3rd accused person, who testified for himself as Dw3: “Then over to the case of DW3 – Ekene Ndukwu. His counsel stressed the point that 1st accused had already claimed personal responsibility for the murder of the deceased. This issue I must straightaway discountenance as no reasonable tribunal will believe that 1st accused did the murder single handedly.

This being so, counsel submitted further that the prosecution linked him with the murder because according to them his conduct that night of the search was indicative that he had some knowledge of the murder. He tried to say that during the search according to PW1, 3rd accused said – “Wetanu oku ebeaoo” meaning – bring light to this place. PW2 in his evidence said “Biano ebeo” meaning come this way. He submitted that these two statements are contradictory and not explained. He cited the case of EBONG VS. STATE (2012) ALL FWLR Pt. 633 1945 at 1978 to buttress this contention.

He further stated that the statements are based on suspicion and as held in the case of TORRI VS. NATIONAL PARK SERVICE (2011) VOL. 7 Pt. 300 pg. 2239, suspicion, no matter how strong, cannot ground conviction on the side of the prosecution. PWS 1 and 2 during the search overheard DW3 utter the words. This was to direct the team even though when the team got to where he was, nothing could be seen. It was only when the team entered the bush that they discovered the bodies of the deceased and his gardner. This piece of evidence the defence did not destroy.

It was this DW3 who move or else drew attention of the search party to the place of discovery. The defence did not destroy this evidence which was corroborated by both PWS. 1, 2 and 3. The words “wetanu oku ebeo” and “Bianu ebeoo” all are taken to mean simply drawing attention to a particular place. We are not here doing a case of slander where all those who heard the word must hear the same thing said in the way it was said. There was a confusion team practically searching for the body of the deceased and in the night. Anyone knowing the spot is not precluded from showing the way.

Moreover, it must be remembered that this was in the night hence the use of light. When he was confronted as the team saw nothing where he was standing he simply kept mute and only continued to mope. This is more than suspicion. The defence had all the chance in the world to debunk this piece of evidence but either did not know, did not want or better still neglected to do so. In the Supreme Court case of PATRICK OFORLETE VS.

THE STATE (2000) FWLR Pt. 12 Pg. 12 2081, it was therein held that there – “The Court is entitled and indeed bound to accept evidence unchallenged under cross-examination, provided such evidence by its nature is not improbable”. 3rd accused was neck deep in the whole episode. Looking at Exh. 8, one can also see that he knew how 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got the wound. I am convinced that he was party to the killing of the deceased and so find him guilty as charged”.

It is therefore apparent from the foregoing that the conviction of the appellant is based on circumstantial evidence. Let me digress at this juncture to state what the prosecution must prove in order to sustain a conviction for the offence of murder. ​To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v.

The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. It is instructive to note that the 1st accused who was jointly tried with the appellant made a confessional statement that he alone murdered the deceased. He repeated this in his defence. The prosecution did not believe him. The Court too did not believe him. Whether the Court believes him or not is not material because even if he had in his extra-judicial statement and his evidence in Court incriminated the appellant, the appellant except he adopts such confession or statement will not be bound.

See the following cases – Tiremisuyu Adebayo v. The State (2014) 8 SCM 34 at 65 para 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271, paras D–G. See Section 29(4) of the Evidence Act, 2011.

All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on the evidence adduced by it which proves the appellant’s guilt beyond reasonable doubt. ​This leads me to the consideration of the kind of circumstantial evidence on which an accused person can be convicted for a criminal offence, and in the instant case of murder, the ingredients of which I had earlier set out. The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v.

The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.

The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:- (I) the irresistible and unequivocal conclusion of the guilt of the appellant. (II) that no other reasonable inference could be drawn from it. (III) that there is no co-existing circumstances which could weaken the inference. ​My lordships are invited to follow me in considering the evidence against the appellant for the purpose of answering the question, just before now posed as to the satisfaction of the three conditions which in law must all together be satisfied before a conviction can be convincingly secured beyond reasonable doubt against the appellant based on circumstantial evidence.

The evidence are: (1) In the course of searching for the deceased in the bush around his residence, the appellant who was with them in the search suggested a direction in which the search should be directed. It has become a reason for his conviction. This piece of evidence sounds too remote to me. It is natural that a search party would normally suggest different directions which they should take in the search. Any other person other than the appellant could have suggested the direction the appellant suggested. Could that have meant that such a person participated in the murder of the deceased?

Or it is being suggested that because the 1st accused who admitted that he murdered the deceased all by himself is a sibling of the appellant, different consideration should apply? This to me is a suspicion carried too far. It is settled in law that suspicion no matter how strong cannot take the place of legal proof. See Alake v. The State (1992) LPELR–403 (SC) P. 15 paras D–E, Ogba v. State (1992) LPELR–2273 (SC), PP. 23–24, paras G–A, Etumonu v. A.G. Delta State (1994) LPELR–14361 (CA), P. 13, paras A–E, Ahmed v. State (2001) LPELR–262 (SC) P.18, paras A–G.

(2) In his extra-judicial statement, (Exhibits 9 and 10) and in his evidence in Court as DW3, he stated that when he noticed his sibling (1st accused) with a wound in his palm and asked him how he came about it, his brother explained that he got it in an altercation with a friend of his to whom he went to recover his debt. Here, the prosecution suggested and the trial Court accepted that the appellant must know something about how the 1st accused received the cut in his hand. This to me also sounds a ludicrous suspicion.

I am not in the least convinced that it affords any circumstantial evidence at all, let alone to form the basis for the conviction of the appellant in a charge of murder.

(3) The trial Court used Exhibit 8 in arriving at its finding that the appellant knew how the 1st accused got the wound in his hand. See page 295 of the record of appeal. Exhibit 8 is the extrajudicial statement of the 4th accused person (Reuben Okasi). In his statement, he denied any involvement in the murder of the deceased. (See page 113 of the record of appeal). There is nothing in his statement that incriminates the appellant.

But even if it does, being a statement made by one co-accused person against another, it cannot bind the appellant except it was made in his presence and he adopts it. I am therefore unable to see what the learned trial Judge “looked” in Exhibit 8 that got him convinced that he knew how the 1st accused person got his wound.

(4) The inconsistency between the two statements of the appellant (Exhibits 9 and 10) as to his whereabout on the date of the incident. ​In his statement made on 8/11/10 (Exhibit 9) he stated that on 4/11/10 he went to Nwaorieubi in search of job, and was indeed not at home when Chief Augustine (the deceased) came back home. However, in his statement made on 17/12/10, he stated that on 4/11/10 he was at home throughout, and in the night he heard that they were looking for their Cousin Chief Augustine.

In his submission, learned counsel for the appellant contended that the appellant raised alibi at the earliest opportunity when he was arrested but that the said alibi was not investigated. On the other hand, the prosecution referred to the inconsistency in the two statements and waved away the non–investigation of the alibi by the police. I cannot fault the prosecution. Alibi simply means elsewhere. When that defence is raised, the accused person claims that he was in a place other than the scene of crime. See the case of Ochemaje v. The State (2008) LPELR–2198 (SC), Nwabueze & Ors. v.

State (1988) LPELR–2080 (SC), P.15 paras B–D, Eyisi & Ors. v. State (2000) LPELR–1186 (SC), P. 61 paras C–D.

If the appellant had stuck to his statement made on 8/11/10, the submission that his alibi was not investigated and the legal consequences to the prosecution’s case would have substance. However, the appellant lost that right when in his statement of 17/12/10, he stated that he did not go to Nwaorieubi in search of work but was at home. It is settled law that for alibi to be worthy of investigation the defence of alibi must be precise and specific in terms of the place that the accused was, and the persons he was with and possibly what he was doing at the material time.

It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. See the case of The State v. Inya Adu (2021) LPELR – 56616 (SC), PP. 76 – 80, paras F – D. It is my conclusion that the defence of alibi does not avail the appellant. But so what now? When a Court reaches the conclusion that the defence of alibi fails, the Court is left with the evidence which fixes the accused person at the scene of crime. In this case, there is no direct eye witness that fixed the appellant to the scene of crime.

The only available evidence is circumstantial evidence which I have earlier considered and arrived at the conclusion that it did not irresistibly, positively and unequivocally point to the guilt of the appellant in the murder of the deceased. This again leaves the Court with another incidence of suspicion, which as earlier shown in a plethora of judicial authorities cannot take the place of legal proof. ​I must say this; the dastardly murder of the deceased is most despicable and condemnable.

However, it does not justify sending another innocent soul to the gallows on mere suspicion no matter how strong. Therefore, I find merit in this appeal and allow it. In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February 2013, is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant are hereby set aside. Consequently, he is hereby discharged and acquitted and is ordered to be released from the Correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my Learned brother James G Abundaga, JCA. I entirely agree with the reasoning and conclusion in the lead judgment that this appeal is meritorious and same is allowed by me. The appellant is discharged and acquitted as ordered.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment just delivered by my learned Brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with the reasoning and conclusion of the learned jurist as encapsulated in the judgment.

I have no reason to depart from them. ​Against the backdrop, I adopt the conclusions and the consequential orders made.

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, Contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra-judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (3rd Accused) is aggrieved with his conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file his brief of argument. The brief of argument settled by his counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021.

The appellant filed a reply brief on 24/1/22, and deemed properly filed on 9/2/21. ​The briefs of argument were adopted on 24/01/22.

In the appellant’s brief of argument, the three issues were identified for determination: (I) Whether the prosecution investigated the defence of alibi raised by the appellant on this charge and the effect of failure to do that in the circumstances of this case. (II) Whether the prosecution proved this charge against the appellant beyond reasonable doubt to warrant his conviction of it. (III) Whether the trial Court properly evaluated the evidence before him concerning the Appellant.

The respondent in her brief of argument formulated two issues for determination to wit: – (I) Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant as a party to the offence, his plea/defence of alibi having failed. (II) Whether in view of the well considered facts and proper evaluation of the evidence(s) before the lower Court, the judgment of 18/2/2013 is not a fair judgment and ought to be sustained. ​Argument on the issues It is contended by the appellant that where a person is accused of committing a criminal offence, the onus is on the prosecution to prove the charge against him beyond reasonable doubt.

It is submitted that the essential ingredients of the offence of murder are:- (a) That the deceased died. (b) That the death of the deceased was caused by the accused. (c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. The case of Michael v. State (2008) All FWLR (Pt. 431) 875 was referred to. Counsel drew the attention of the Court to the holding of the Court which was the basis of his conviction.

The Court said: “He (appellant) knew how the 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got his wound. I am convinced that he was a party to the killing of the deceased”. ​Counsel submits that there is no material evidence before the Court which satisfies the requirement of proof beyond reasonable doubt. It is further submitted that DW4 (1st accused) confessed that he killed the deceased. That in addition, the appellant set up alibi which was not investigated by the police.

This is in addition to the fact that the evidence against the appellant is weak. It is contended by the appellant that he set up the defence of alibi, and stated where he was, which is, elsewhere other than where he was alleged to have committed the offence. That he thus discharged the evidential evidence on him, by providing details of where he was but the police did not bother to investigate it. The prosecution, counsel submits did not lead any strong evidence connecting the appellant with the commission of the offence. That they did not debunk the alibi that he raised.

On the effect of a failure to cross-examine a witness on a material fact, it is submitted that the implication is that the adversary accepts the matter as led in evidence. Reliance is placed on the case of Oforlete v. The State (2009) 8 ACR, Vol. 8 page 398. It is further submitted that the standard of proof required to establish alibi is one based on balance of probabilities. Further on alibi, the cases cited, include Obalum Anakwe v.

The State (1976) 10 SC 225 p. 264. ​Submits that before a Court may draw inferences of guilt, it must be sure that there are no other co-existing circumstances that would weaken such inference. Counsel refers to the aspect of the trial Court’s judgment where the learned trial Judge allegedly found that the appellant was neck deep in the whole episode of the murder of the deceased, and submitted that none of the prosecution witnesses mentioned anything like that in their various statements to the police in the course of investigation or in Court.

Submits that the appellant should be entitled to the benefit of doubt where doubt is created by the inability of the police to investigate the alibi raised at the earliest time. Reliance is on the case of The State v. Aibanbee & Anor (1988) 7 SCNJ 128. The Court is therefore urged to discharge and acquit the appellant having allowed the appeal. Respondent’s counsel submits that the ratio decidendi of the judgment is not the trial Judge’s statement that the appellant was neck deep in the whole episode.

The ratio decidendi, counsel submits is that the appellant was a party to the killing of the deceased. Referring to the alibi set up by the appellant counsel submits that the alibi at one breath removed him from home on the date of the incident and in another placed him at home throughout the day of the incident. That inherent in the alibi is contradiction, which counsel submits is material. That in this instance, the Court cannot pick and choose which evidence to believe and which to disbelieve.

On the issues submitted by the appellant for determination, it is submitted for the respondent that why one of the three issues was argued while the other was abandoned. Revisiting the defence of alibi raised by the appellant, it is submitted by respondent’s counsel that the appellant raised it and went to sleep without establishing it. In further argument to support appellant’s conviction, it is submitted for the respondent that the appellant took part in the offence, and cites in support Section 7 (a), (b), & (c) of the Criminal Code. Also cited is George v.

FRN (2011) 10 NWLR (Pt. 1254) 1. ​Counsel pointed out that DW2, John Emesiobi convened a meeting at his house where the 1st accused (appellant’s brother) and other accused persons were present and conspired to kill the deceased. That the mere fact that the appellant was not present physically at that meeting is not conclusive that he is innocent or not part of the conspirators to the offence. Explaining further the concept of conspiracy, the Court is referred to the case of Oyediran v. Republic (1967) NMLR 122. Submits that the elements that define conspiracy are found in the instant appeal.

Specifically, counsel refers the Court to pages 77–95 to the evidence of PW1 as to what the appellant did on the day the body of the deceased was retrieved during the search. That the appellant drew the attention of the search team to the direction that the deceased body was found in the bush. That the evidence of PW1 as to what the appellant did during the search was corroborated by the evidence of PW2 (Edwin Nwabueze Ndukwu) who it was that reported and invited the police. That the appellant was heard to say – “Bianu ebe oo”, and when he was asked what happened, he was mopping at them.

That the defence did not cross-examine the witness on that piece of evidence, therefore, counsel submits that Court is entitled to accept and act on it, the case of Patrick Oforlete v. The State (2000) All FWLR (Pt. 12) 2081 was cited in support of this submission.

It is contended that the 1st, 3rd and 5th accused persons are siblings. Therefore, counsel submits it stands to reason and commonsensical that the 1st accused intentionally pleaded guilty to the offence and claimed that he did it alone to save his other siblings. The law, further submitted by counsel is trite that sentiments no matter how well crafted commands no place in law. Submits that the judgment is without fault and is a product of proper evaluation of the evidence before the Court which the trial Judge rightly ascribed probative value to.

It is therefore contended that the judgment is not perverse. On the proper Court that can evaluate evidence being the trial Court, not a few cases are cited, and they include Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 paras F–A, Ratio 7; Shamaki v. Baba (2000) All FWLR (Pt. 26) 1878 at 7888, paras D–E, ratio 6, Okala v.

Udah (2019) All FWLR (Pt. 1021) 203 at 231 to 232 paras B–A, P. 206; to mention but some. ​Therefore, counsel submits, the evaluation of evidence on record having been properly and rightly done, and probative values ascribed thereto, the appellate Court is deprived of the vires to interfere with it. All the submissions of the appellant’s counsel should be discountenanced, it is further contended for the Respondent. The Court is therefore urged to dismiss the appeal as same is lacking in merit.

RESOLUTION: All the issues formulated and argued by the appellant and the respondent coalesce to one broad issue, which is, whether the charge of murder was proved beyond reasonable doubt against the appellant to warrant his conviction. A convenient and instructive starting point is the burden and standard of proof. The law is settled that the standard of proof is beyond reasonable doubt while the burden is on the prosecution. See the following cases: – Agugua v. The State (2017) LPELR–42021 (SC), P. 38, paras B–F, Tobi v. The State (2019) LPLR–46537 (SC) P.24, paras C–D, Edun & Anor v.

FRN (2019) LPELR–46947 (SC) P. 12. ​It has also been established in law that the guilt of an accused person can be proved in three ways, to wit: (I) By eye witness account of the Commission of the offence, (II) By confessional statement of the accused person, (III) By circumstantial evidence. The following judicial authorities are instructive: James Afolabi v. The State (2016) LPELR–40300 (SC), PP. 51–52 paras F–B, Demo Oseni v. The State (2012) LPELR–7833 (SC), P. 41, paras B–C, Darlington Eze v. FRN (2017) LPELR–42097 (SC), P. 63, paras C – E.

A careful review of the evidence adduced in this case reveal quite clearly that there is no eye witness account of anyone who saw the appellant either by himself alone, or acting in concert to murder the deceased, Chief (Sir) Augustine Ndukwu. It is also correct to state that the appellant did not confess to the murder of the deceased. Apart from there being no evidence on record to the appellant either murdering the deceased or confessing to his murder, the judgment of the trial Court, particularly the finding attest to the position which I humbly hold.

The learned trial Judge at pages 294–295 made the following findings concerning the 3rd accused person, who testified for himself as Dw3: “Then over to the case of DW3 – Ekene Ndukwu. His counsel stressed the point that 1st accused had already claimed personal responsibility for the murder of the deceased. This issue I must straightaway discountenance as no reasonable tribunal will believe that 1st accused did the murder single handedly.

This being so, counsel submitted further that the prosecution linked him with the murder because according to them his conduct that night of the search was indicative that he had some knowledge of the murder. He tried to say that during the search according to PW1, 3rd accused said – “Wetanu oku ebeaoo” meaning – bring light to this place. PW2 in his evidence said “Biano ebeo” meaning come this way. He submitted that these two statements are contradictory and not explained. He cited the case of EBONG VS. STATE (2012) ALL FWLR Pt. 633 1945 at 1978 to buttress this contention.

He further stated that the statements are based on suspicion and as held in the case of TORRI VS. NATIONAL PARK SERVICE (2011) VOL. 7 Pt. 300 pg. 2239, suspicion, no matter how strong, cannot ground conviction on the side of the prosecution. PWS 1 and 2 during the search overheard DW3 utter the words. This was to direct the team even though when the team got to where he was, nothing could be seen. It was only when the team entered the bush that they discovered the bodies of the deceased and his gardner. This piece of evidence the defence did not destroy.

It was this DW3 who move or else drew attention of the search party to the place of discovery. The defence did not destroy this evidence which was corroborated by both PWS. 1, 2 and 3. The words “wetanu oku ebeo” and “Bianu ebeoo” all are taken to mean simply drawing attention to a particular place. We are not here doing a case of slander where all those who heard the word must hear the same thing said in the way it was said. There was a confusion team practically searching for the body of the deceased and in the night. Anyone knowing the spot is not precluded from showing the way.

Moreover, it must be remembered that this was in the night hence the use of light. When he was confronted as the team saw nothing where he was standing he simply kept mute and only continued to mope. This is more than suspicion. The defence had all the chance in the world to debunk this piece of evidence but either did not know, did not want or better still neglected to do so. In the Supreme Court case of PATRICK OFORLETE VS.

THE STATE (2000) FWLR Pt. 12 Pg. 12 2081, it was therein held that there – “The Court is entitled and indeed bound to accept evidence unchallenged under cross-examination, provided such evidence by its nature is not improbable”. 3rd accused was neck deep in the whole episode. Looking at Exh. 8, one can also see that he knew how 1st accused got his wound in his hand. He saw 1st accused that evening and knew how he got the wound. I am convinced that he was party to the killing of the deceased and so find him guilty as charged”.

It is therefore apparent from the foregoing that the conviction of the appellant is based on circumstantial evidence. Let me digress at this juncture to state what the prosecution must prove in order to sustain a conviction for the offence of murder. ​To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v.

The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. It is instructive to note that the 1st accused who was jointly tried with the appellant made a confessional statement that he alone murdered the deceased. He repeated this in his defence. The prosecution did not believe him. The Court too did not believe him. Whether the Court believes him or not is not material because even if he had in his extra-judicial statement and his evidence in Court incriminated the appellant, the appellant except he adopts such confession or statement will not be bound.

See the following cases – Tiremisuyu Adebayo v. The State (2014) 8 SCM 34 at 65 para 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271, paras D–G. See Section 29(4) of the Evidence Act, 2011.

All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on the evidence adduced by it which proves the appellant’s guilt beyond reasonable doubt. ​This leads me to the consideration of the kind of circumstantial evidence on which an accused person can be convicted for a criminal offence, and in the instant case of murder, the ingredients of which I had earlier set out. The criminal jurisprudence is replete with several definitions of circumstantial evidence, all of them leading to one common or general effect. In the case of Musa Mamman v.

The State (2015) LPELR–255963 (CA), circumstantial evidence was thus defined: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwalo v. State (2021) LPELR–56302 (CA) PP. 19–20, paras E–B.

The question now arises, whether the grounds constituting the circumstantial evidence upon which the appellant was convicted satisfies the following conditions:- (I) the irresistible and unequivocal conclusion of the guilt of the appellant. (II) that no other reasonable inference could be drawn from it. (III) that there is no co-existing circumstances which could weaken the inference. ​My lordships are invited to follow me in considering the evidence against the appellant for the purpose of answering the question, just before now posed as to the satisfaction of the three conditions which in law must all together be satisfied before a conviction can be convincingly secured beyond reasonable doubt against the appellant based on circumstantial evidence.

The evidence are: (1) In the course of searching for the deceased in the bush around his residence, the appellant who was with them in the search suggested a direction in which the search should be directed. It has become a reason for his conviction. This piece of evidence sounds too remote to me. It is natural that a search party would normally suggest different directions which they should take in the search. Any other person other than the appellant could have suggested the direction the appellant suggested. Could that have meant that such a person participated in the murder of the deceased?

Or it is being suggested that because the 1st accused who admitted that he murdered the deceased all by himself is a sibling of the appellant, different consideration should apply? This to me is a suspicion carried too far. It is settled in law that suspicion no matter how strong cannot take the place of legal proof. See Alake v. The State (1992) LPELR–403 (SC) P. 15 paras D–E, Ogba v. State (1992) LPELR–2273 (SC), PP. 23–24, paras G–A, Etumonu v. A.G. Delta State (1994) LPELR–14361 (CA), P. 13, paras A–E, Ahmed v. State (2001) LPELR–262 (SC) P.18, paras A–G.

(2) In his extra-judicial statement, (Exhibits 9 and 10) and in his evidence in Court as DW3, he stated that when he noticed his sibling (1st accused) with a wound in his palm and asked him how he came about it, his brother explained that he got it in an altercation with a friend of his to whom he went to recover his debt. Here, the prosecution suggested and the trial Court accepted that the appellant must know something about how the 1st accused received the cut in his hand. This to me also sounds a ludicrous suspicion.

I am not in the least convinced that it affords any circumstantial evidence at all, let alone to form the basis for the conviction of the appellant in a charge of murder.

(3) The trial Court used Exhibit 8 in arriving at its finding that the appellant knew how the 1st accused got the wound in his hand. See page 295 of the record of appeal. Exhibit 8 is the extrajudicial statement of the 4th accused person (Reuben Okasi). In his statement, he denied any involvement in the murder of the deceased. (See page 113 of the record of appeal). There is nothing in his statement that incriminates the appellant.

But even if it does, being a statement made by one co-accused person against another, it cannot bind the appellant except it was made in his presence and he adopts it. I am therefore unable to see what the learned trial Judge “looked” in Exhibit 8 that got him convinced that he knew how the 1st accused person got his wound.

(4) The inconsistency between the two statements of the appellant (Exhibits 9 and 10) as to his whereabout on the date of the incident. ​In his statement made on 8/11/10 (Exhibit 9) he stated that on 4/11/10 he went to Nwaorieubi in search of job, and was indeed not at home when Chief Augustine (the deceased) came back home. However, in his statement made on 17/12/10, he stated that on 4/11/10 he was at home throughout, and in the night he heard that they were looking for their Cousin Chief Augustine.

In his submission, learned counsel for the appellant contended that the appellant raised alibi at the earliest opportunity when he was arrested but that the said alibi was not investigated. On the other hand, the prosecution referred to the inconsistency in the two statements and waved away the non–investigation of the alibi by the police. I cannot fault the prosecution. Alibi simply means elsewhere. When that defence is raised, the accused person claims that he was in a place other than the scene of crime. See the case of Ochemaje v. The State (2008) LPELR–2198 (SC), Nwabueze & Ors. v.

State (1988) LPELR–2080 (SC), P.15 paras B–D, Eyisi & Ors. v. State (2000) LPELR–1186 (SC), P. 61 paras C–D.

If the appellant had stuck to his statement made on 8/11/10, the submission that his alibi was not investigated and the legal consequences to the prosecution’s case would have substance. However, the appellant lost that right when in his statement of 17/12/10, he stated that he did not go to Nwaorieubi in search of work but was at home. It is settled law that for alibi to be worthy of investigation the defence of alibi must be precise and specific in terms of the place that the accused was, and the persons he was with and possibly what he was doing at the material time.

It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. See the case of The State v. Inya Adu (2021) LPELR – 56616 (SC), PP. 76 – 80, paras F – D. It is my conclusion that the defence of alibi does not avail the appellant. But so what now? When a Court reaches the conclusion that the defence of alibi fails, the Court is left with the evidence which fixes the accused person at the scene of crime. In this case, there is no direct eye witness that fixed the appellant to the scene of crime.

The only available evidence is circumstantial evidence which I have earlier considered and arrived at the conclusion that it did not irresistibly, positively and unequivocally point to the guilt of the appellant in the murder of the deceased. This again leaves the Court with another incidence of suspicion, which as earlier shown in a plethora of judicial authorities cannot take the place of legal proof. ​I must say this; the dastardly murder of the deceased is most despicable and condemnable.

However, it does not justify sending another innocent soul to the gallows on mere suspicion no matter how strong. Therefore, I find merit in this appeal and allow it. In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February 2013, is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant are hereby set aside. Consequently, he is hereby discharged and acquitted and is ordered to be released from the Correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my Learned brother James G Abundaga, JCA. I entirely agree with the reasoning and conclusion in the lead judgment that this appeal is meritorious and same is allowed by me. The appellant is discharged and acquitted as ordered.

ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read in draft the judgment just delivered by my learned Brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with the reasoning and conclusion of the learned jurist as encapsulated in the judgment.

I have no reason to depart from them. ​Against the backdrop, I adopt the conclusions and the consequential orders made.

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

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Calabar Division of the Court of Appeal or Court below or lower Court, Coram: Chioma E. Nwosu-lheme, Stephen Jonah Adah and Joseph Olubumi Kayode Oyewole JJCA delivered on the 24th day of May, 2017 in which the Court below dismissed the appeal of the appellant and allowed the cross-appeal filed by the respondent substituting the life imprisonment imposed by the trial Court per G. Abraham J., for manslaughter with a sentence of death for murder.

Presently, the appellant is serving the life imprisonment to which he was sentenced by the Court of trial at the Uyo Federal Prison.

The Appellant, PC IMO AKPAKPAN was charged before the Akwa Ibom State High Court of Justice, Itu Judicial Division on a lone issue charge of murder.

The case of the prosecution was that on the 5th day of August, 2010 along Nasarawa goat Market Road, Itam in Itu Judicial Division, the Appellant, PC IMO AKPAKPAN murdered one Idongesit Okon Tom.

The Appellant, PC IMO AKPAKPAN was a police constable who was on patrol duty with four other police officers from D division, Itam, Uyo. In the course of duty, the appellant conducted a stop and search and eventually stopped the deceased, Idongesit Okon Tom who had no particulars for his motorcycle which resulted in the motorcycle being impounded in the police vehicle.

The team was headed by PW1, ASP Magdiel Douglas Peison who directed all the police officers to put the deceased motorcycle without particulars into the police vehicle and for the police officers to enter the police vehicle to move the impounded motorcycle to the police station. While the vehicle was about making a U-turn, the Appellant deliberately jumped down from the van cocked his gun- AK47 rifle and shot at the deceased and the bullet hit on the tarred floor, re-bounced or ricocheted and pierced through the deceased stomach who died two weeks later in the hospital.

Magdiel Douglas Peison (PW1), an Assistant Superintendent of Police (ASP) and the commander in patrol testified on 31st July, 2012 that they were five (5) in number including the Appellant who went out on patrol when he directed that a stop and search be conducted at Nasarawa street and all the other four (4) police officers came down for that purpose.

While conducting the stop and search, the deceased came along carrying a passenger at the back of his motorcycle and he was stopped by the Appellant who demanded for his particulars and further observed that the deceased’s plate number was not genuine. PW1 further testified that he ordered for the motorcycle to be picked into the police vehicle and taken to the station but that the Appellant was still standing and arguing with the deceased and his friend.

He stated that he shouted at the Appellant who entered the vehicle but while the vehicle was moving slowly to take a U-turn, the Appellant opened the door and came down. The Appellant fired at the deceased. The bullet penetrated the motorcycle rider, hit the ground and hit the friend at the upper lid of the eye. The bullet hit the rider on the stomach and penetrated through the back of the deceased. The shot was a close range. Under cross-examination, PW1 testified that when he asked the Appellant why he fired the motorcycle rider, the Appellant responded that he was confused.

See pages 56 – 59 of the Record of Appeal.

Sylvanus Atila (PW 2), an Inspector of Police who was in the team on duty with the Appellant and also at the scene of the incident testified on 31st July, 2012 that the Appellant was quarrelling with the deceased when the commander of the patrol team (PW1) directed the Appellant to enter the vehicle with the other police officers. The Appellant obeyed and entered the vehicle but while the driver was reversing the vehicle, the Appellant dropped down and went back to quarrel with the motorcycle rider.

While in the vehicle they heard a gunshot which they came out, they found the motorcycle rider lying on the floor. See pages 59 – 61 of the Record of Appeal.

Daniel Ikoedem (PW3), a police constable who was in the team on duty with the Appellant and also at the scene of the incident testified on 21st November, 2012 that the commander of the patrol team had ordered for the deceased motorcycle to be booked and taken to the police station. That the deceased requested to know which station his motorcycle was being taken to and further stated that if the motorcycle was taken to ‘D’ Division he would take it free of charge. The Appellant jumped down at that juncture from the patrol vehicle cocked his rifle and he heard the sound of a shot.

When he got down from the vehicle he saw the motorcycle rider on the ground in the pool of his blood. See Pages 62-63 of the Record of Appeal.

Gabriel Sunday (PW4), an inspector of police testified as the Investigating Police Officer (IPO) on 11th April, 2013 that the Appellant confirmed in his statement dated 6/8/2010 that he actually cocked his rifle and fired which bullet eventually hit the deceased in the stomach. In the course of investigation, PW4 recovered the gun used by the Appellant, an AK47 rifle with 19 remaining rounds of live ammunition having shot one round.

PW4 also testified that one Idongesit Okon Tom is dead and that he died from a gunshot fired by the Appellant as is evident from the Exhibit 1, Statement of the Appellant, Exhibit 3, 3A, 3B, Photographs of the deceased and Negatives, Exhibit 4, Autopsy Report and Exhibit 6, 6A, the AK47 Rifle and cartridge containing 19 live ammunitions tendered in the course of his testimony. See pages 66 – 71 of the Record of Appeal.

The prosecution called four witnesses and tendered ten exhibits. The appellant testified in his own defence and called no witness. The Appellant testified for himself at trial as DW1. He testified that they were 5 policemen in number conducting a stop and search and while directing vehicles to stop, he stopped and searched one particular motorcycle (deceased). He requested for the particulars of the motorcycle but the deceased did not have them and the motorcycle had no registration number. Then his superior (PW1), asked all the policemen to get into the vehicle.

As he crossed the road to enter the vehicle, the motorcyclist and the passenger held him, one in front and the other behind. They began to drag him and demanded for their motorcycle. They also began to drag the rifle that the Appellant was holding. In the process, one of them pulled the trigger and a shot was fired. The bullet that came out hit the ground before hitting the motorcyclist (deceased). See Pages 72 – 74 of the Record of Appeal.

The oral evidence of the Appellant was contrary to what the Appellant said in his extra-judicial statement to the police with regard to how the gun was fired. The Appellant stated in one breath that the trigger was pulled during a struggle and in another breath stated that he cocked the rifle and fired same.

In its considered judgment of 19th December, 2013, the learned trial judge disbelieved the evidence of the Appellant and found the Appellant guilty of manslaughter and sentenced him to life imprisonment. The judgment of the trial Court is found at pages 79-84 of the Record of Appeal.

The Court below dismissed the appeal of the Appellant and allowed the Respondent’s Cross-Appeal. The Court below found the Appellant guilty of Murder and sentenced him to death by hanging on 24th May, 2017. The judgment of the Court below is found at pages 194 – 211 of the Record of Appeal.

Dissatisfied with the judgment, the Appellant has further appealed to this Court vide a Notice of Appeal filed on 21st June, 2017. The Notice of Appeal is found at pages 216 – 219 of the Record of Appeal.

The hearing of the appeal was on the 11th March, 2021 at which learned counsel for the appellant, Lawrence S. Oko-Jaja Esq., adopted the brief of argument filed on 5/10/2018 and deemed filed on 30/10/2019 and a reply brief filed on 9/5/2019 and deemed filed on 30/10/2019. He distilled three issues for determination, viz: 1. Whether the failure of the Court below to consider the defence of accident raised by the appellant which is a reliance on the provisions of S.24 of the Criminal Procedure Code, Act Cap.

C.38 Laws of the Federation of Nigeria, 2004 which exculpates the appellant from criminal liability did not lead to a miscarriage of justice by the Court below. 2. Whether the substitution by the Court below of the life sentence for which the appellant is already serving at Uyo Federal Prison with that of murder does not amount to a miscarriage of justice when the defence of accident raised by the appellant was not disproved (based on ground Ill of the grounds of appeal). 3.

Whether the failure of the Court below to consider the appellant submissions and the Supreme Court authorities cited to it which constitute binding authorities on the Court below did not lead to a miscarriage of justice against the appellant (based on ground II of the grounds of appeal).

Learned counsel for the respondent and DPP of Akwa Ibom State Joseph Umoren adopted the brief of argument filed on 10/4/2019 and deemed filed on 30/10/2019. He adopted the issues framed by the appellant which he summarised into a single issue thus:- Whether having regard to the totality of the evidence before the Court, there was miscarriage of justice when the Court of Appeal (Court below) held that the defence of accident put forward by the appellant did not avail him and therefore convicted the appellant for murder and sentenced him to death by hanging.

This sole issue put up by the respondent is apt for the determination of the appeal.

SOLE ISSUE Whether having regard to the totality of the evidence before the Court there was miscarriage of justice when the Court of Appeal held that the defence of accident put forward by the appellant did not avail him and therefore convicted the appellant for murder and sentenced him to death by hanging.

Advancing the stance of the appellant, learned counsel stated that the extra-judicial statement of the appellant negative any intention of the appellant to kill or cause grievous bodily harm on the deceased. That the appellant raised the defence of accident and same was corroborated by PW1 and PW4 but the trial Court failed to consider the said defence which occasioned a miscarriage of justice.

He submitted further that the Court below was in error when it held that it was immaterial whether the bullet hit the tarred road before hitting the deceased or hit the deceased before hitting the tarred road, which decision showed the Court below unwilling to countenance any defence of accident. He cited S.24 of the Criminal Code Act, Cap C.3 LFN 2004, Amayo v State (2001)18 NWLR (pt.745) 251 at 274 – 275 etc.

That there was no contradiction in the extra-judicial statement of the appellant as against his oral testimony that he fired the shot on the tarred road to frighten the deceased which unfortunately ricocheted and hit the deceased hence the reliance of the Court below on the case of Edoko v The state (2015) All FWLR (pt. 772) 1728 at 1753 was misplaced.

Learned counsel for the appellant contended on the substitution of the sentence from life imprisonment to death by hanging done by the Court below as erroneous since the trial Court which made the life imprisonment sentence had not found for murder but rather found death of the deceased as occurring by accident and a guilt of manslaughter being the result. He cited Ejeka v The State (2003) 7 NWLR (pt. 819) 408 at 423; Adebayo Adeyemi v The State (1991) 15 NWLR 131 at 140 etc.

That the Court below glossed over the submission of counsel for the appellant cross-respondent which led to a miscarriage of justice as if the contentions of the appellant had been given due consideration, the decision would have been different. He cited The State v Babangida (2013) 543 NSCQR 1903 at 1939.

The learned DPP contended for the respondent that no miscarriage of justice was occasioned and the Court below was right to reject the defence of accident and convicted the appellant for the murder of the deceased. That the oral evidence of the appellant was unreliable hence the two Courts below labelled it an afterthought. He cited many judicial authorities including State v Ajie (2000) 11 NWLR (pt. 678) 434; Oforlete v state (2000) 12 NWLR (pt. 681) 415 etc.

That all the ingredients of the offence of murder were satisfactorily proved by the respondent.

In reply on points of law learned counsel for the appellant contended that this is a proper case for the interference of the Supreme Court on the concurrent findings of fact of the two lower Courts as the findings stemmed from perverse roots as the lower Courts did not take cognisance of the inconsistencies in the evidence of the prosecution witnesses especially PW4.

In a long line of judicial authorities, it has become well settled that the burden of proof in all criminal cases is upon the prosecution to prove the guilt of the accused person beyond reasonable doubt and in like manner, in a plethora of cases the essential ingredients of murder which must be established to secure a conviction are as follows:- a. That he deceased died. b. That the death of the deceased resulted from the act of the appellant, and c. That the said act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Njoku v State (2013) 532 NSCQR 230 at 267; Amaremor v State (2014) All FWLR (pt. 736) 4-06 at 422; Ola v State (2014) All FWLR (pt. 752) 1648 at 1664; Igago v The State (1999) 14 NWLR (pt. 637) 1 at 20.

On the first ingredient in the proof of the offence of murder is whether the deceased indeed died. In the case at hand, the death of Idongesit Okon Tom, the deceased under discourse is not in dispute as even the appellant conceded that fact. The evidence of PW1, PW2 and PW3 who were at the scene of the incident when the appellant shot the deceased with AK47 rifle and the bullet penetrated his stomach which resulted in the death of the deceased days after at the University of Uyo Teaching Hospital (UUTH), which evidence the trial Court accepted as credible and reliable.

Also, the investigative evidence of PW4 who saw the corpse and the Exhibits 3, 3A and 3B, the photographs and Exhibit 4, the post mortem report confirm that Idongesit Okon Tom died. This finding of fact, the Court below affirmed, not seeing any miscarriage of justice leading to it, and considering the preeminent position of the trial Court as the one with the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanour in the witness box.

This therefore brought about concurrent findings of fact, which this Court has nothing on which it can support an interference to the contrary, in substitution of its own views for the views of either the trial Court or the Court below. See State v Ajie (2000) 11 N WLR (pt. 678) 434 per Onu JSC at 449; Chief Frank Ebba v Chief Warri Ogodo (1984) 1 SC NLR 372; Fabunmi v Agbe (1985) 1 NWLR (pt. 2) 299 at 314; Fatoyinbo v Williams (1956) SC NLR 274; Ukatta v Ndinaeze (1997) 4 NWLR (pt. 499) 251 at 363.

The conclusion therefore is that the first element of the offence of murder, that the man died has been proved beyond reasonable doubt. ​ On the second ingredient, which is that the death of the deceased resulted from the act of the appellant, which has to be established by the prosecution beyond reasonable doubt. In this, there is really no debate on either side, taking a community consideration of the evidence of PW1, PW2, PW3 and PW4 together with the content of Exhibit 1, the statement of the appellant made on 6/8/2010.

For emphasis, the cause of death of the deceased was from the bullet fired by the appellant from his AK47 rifle, the outcome being the death of the deceased. The same rifle was admitted in evidence as Exhibit 6 at the trial Court without objection and appellant confirmed under cross-examination that at the time of the incident he was carrying an AK47 rifle with twenty rounds of ammunition out of which one round was expended as evident from Exhibit 6A, the remaining 19 live ammunition contained in a cartridge.

The fact of the consequence of the act of the appellant in firing the gun being the death of the deceased is proved beyond reasonable doubt. See Uguru v State (2002)FWLR (pt. 103) 330; (2002)9 NWLR (pt.771) 90; Oforlete v State (2000) FWLR (pt.12) 2081; (2000) 12 NWLR (pt.681) 415; Ogedengbe v State (2014) All FWLR (pt. 752) 1724 at 1756; Bature v State (1994) 1 NWLR (pt. 320) 267; Saidu v State (1982) 4 SC 41.

However needing to be brought in at this point is whether or not the firing at the deceased was deliberate as the prosecution posits or whether it was accidental as the appellant is posturing.

In Exhibit 1, the statement of the appellant, extra-judicially made the appellant sought to exculpate himself from blame. I shall quote part of Exhibit 1. The appellant stated thus: “As I crossed the road to the other side where the patrol vehicle was parked, the rider of the motor-cycle and the passenger came to me and held my shirt and said they wanted their motor-cycle. One held me at the back and the other held me in front. Both of them dragged the riffle with me. The rifle exploded. They removed the safety and one of them touched the trigger and the rifle exploded….

The bullet bounced on the road and hit the rider of the motorcycle.” We refer to lines 6-15 of page 73 of the Record of Appeal.

The Appellant in his oral evidence cleared himself from blame by raising accidental discharge while Exhibit n1 linked him to the commission of the offence in relation to the 2nd ingredient, i.e that he caused the death of the deceased.

To resolve the issue of which evidence to be relied on in this circumstance, this Court held in EDOKO V STATE (2015) ALL FWLR (pt. 772) P.1728 at p. 1753, paras A-B: “Where an accused person is shown to have made a statement previously, which is inconsistent with the defence given at the trial, a trial Court will be right to conclude that the evidence given at the trial is unreliable, aimed at exculpating the accused from blame.”

Oral testimony of the Appellant at the trial Court, an afterthought. The trial Court rightly held as follows: “I do not believe that the deceased and the other passenger had in any manner blocked the accused person or dragged with him or struggled over the riffle. I do not believe that the deceased or the other passenger pulled the trigger. I believe that the accused person, still being infuriated over the earlier quarrel between him and the deceased disobeyed the senior police officer and went out of the vehicle to confront the deceased.

I believe that he was the one who pulled the trigger and fired the shot. It is this shot that caused the death of the deceased.

There is no gainsaying that the evaluation of relevant and material evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises the fact, it is not the business of the appellate Court to substitute its own views for the views of the trial Court. See STATE V AJIE (2000)11 NWLR (pt.678) 434.

The Court below agreed with the position of the law as regards the evaluation of evidence by the trial Court and found as a fact that the evidence was properly evaluated by the trial Court and saw no need to interfere with such findings. The Court below held thus: “In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial judge was entitled to weigh both issues and reach a conclusion on which side he believed. He did so at page 82, line 12-20…..

I hereby label them oral testimony of the Appellant at the trial Court an afterthought.” We refer my Lords with respect to page 202 of the Record of Appeal.

It is easy to see why the two Courts below chose the consistent evidence of the PW1, PW 2 and PW 3 as against the oral testimony of the appellant as the prosecution witnesses testify that appellant had entered the police vehicle to return to the police station but as the vehicle made a U-turn, the appellant jumped out of the vehicle, confronted the deceased and the next minute the PW1- PW3 heard a gunshot and when they came down, saw the deceased in a pool of his own blood.

The evidence of PW1- PW3 remained unchallenged, not contradicted or controverted under cross-examination and the Court has no option than to act on it. See Oforlete v State (2000) 12 NWLR (pt. 681) 415; Ogunleye v. Jaiyeoba (2011) NWLR (pt. 1252) 339 at 345; lwunze v FRN (2013) 1 NWLR (pt. 1334) 199.

Again to be said is that the findings upon evaluation of the trial Court, affirmed by the Court below, that there is no doubt that the death of the deceased was as a result of the act of the appellant and so this present Court has no business interfering or disturbing the concurrent findings of the two Courts below having been fully backed by credible evidence on record. I rely on the cases of Ali v The State (2015) All FWLR (pt.796) 559 at 589; Ikpo v The State (2016) 260 LRCN 77 at 110; Akinlolu v The state (2016) 251 LRCN 1 at 40.

In respect to the question on the third ingredient of the offence of murder, which is that the said act of the appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence, the angle taken by the appellant revolves around this third element of the offence is the defence of accident put up by the appellant.

In the situation on ground for a conviction to lie in the charge of murder, the prosecution must prove the criminal intent of an accused person to cause grievous bodily harm and this can be gleaned from the weapon used and the part of the body targeted at the stomach. In this instance, where the appellant used a dangerous weapon, being an Ak47 his service rifle in attacking the deceased by shooting the Court has the liberty to infer the intent to cause grievous bodily harm which resulted in the death of the deceased.

He cited Nwokearu v State (2013) All FWLR (pt. 689) 1040, Michael v State (2008) All FWLR (pt.431) 875; Sule v State (2009) 17 NWLR (pt.1169) 33; Achuku v State (2015) All FWLR (pt. 779) 1079 at 1109.

It is now trite in law that a man is presumed to intend the natural outcome of his act.

In this case, the appellant cocked his service rifle and fired a shot from the rifle and the bullet hit the tarred road and then ricocheted and hit the deceased in the stomach. The bullet penetrate the stomach of the deceased, indicating the proximity between the appellant and the deceased. The act of the Appellant was deliberate as it is obvious from the records and the entire evidence particularly the evidence of PW1-PW3 that there was an argument between the Appellant and the deceased.

That the Appellant was even compelled by PW1, the commander of patrol to enter the vehicle and he complied. Yet when the vehicle was about taking a U-turn to the police station, the Appellant jumped down, went back to the deceased, cocked his rifle and fired. Therefore, the Appellant is presumed to have intended to send the deceased to an untimely death. The apposite maxim is: intention mea impointnamien opera meo- my intention gives a name to my action. It will be unreasonable and hostile for the law to presume otherwise, that is, want of intention in favour of the appellant.

See the case of ACHUKU V STATE supra 1109.

It is not difficult to deduce that the intention of the Appellant was to cause the death of the deceased. This was the reaction of the trial Court when the learned trial judge held thus: “PW1, PW2 and PW3 have consistently stated that they came out and found the deceased lying on the ground while the accused was standing by. Where death is a probable consequence of an act, the person doing the act is said to have intended the probable consequence.

Where a person pulls a gun and pointing towards another, fires the shot on the tarred road in front of that other person, the person firing the shot knows that there is a probable consequence of death by the ricocheting effect of the bullet. This is much more so given the fact that the accused person is a police officer. I therefore hold that the accused person’s act was done with the intention of causing death to the deceased.”

The findings of the trial Court of the intendment of the appellant to cause the death of the deceased was not interfered with by the Court below. In fact, the lower Court made findings along the same path when it stated as follows:- “It is on record as stated by PW1 – PW3 that the Appellant had entered the police vehicle to leave for the station when he suddenly jumped out of the vehicle, cocked his rifle and fired a shot that penetrated through the deceased’s stomach. The Appellant is presumed to have intended to kill the deceased.”

The appellant is hanging on the bare thread of a defence that hitting the deceased was an accident. The Appellant in Exhibit 1 alleged that the deceased held him and dragged him. In order for him to free himself, he fired a shot on the tarred road to frighten him but the bullet also hit the man on his stomach. We refer to lines 14-20 of page 20 of the Record of Appeal.

In his oral evidence, the Appellant alleged as follows: “As I crossed the road to the other side where the patrol vehicle was parked, the rider of the motor- cycle and the passenger he carried came to me and held my shirt and said they wanted their motor- cycle. One held me at the back and the other held me in front. Both of them dragged the rifle with me. The rifle exploded. They removed the safety and one of them touched the trigger and the rifle exploded… The bullet bounced on the tarred road and hit the rider of the motorcycle.”

We humbly refer the Court to lines 6-15 of page 73 of the Record of Appeal.

Even though Exhibit 1 and the oral evidence of the Appellant are seemingly contradictory, the Appellant raised the defence of accident, and pleaded the exculpatory words in Section 24 of the Criminal Code. I shall refer to the case which dicta seem to have been made for the case in hand, the circumstances of the defence raised by the appellant. I shall cite it for guidance.

In the case of ADEGBOYE V STATE (2017) LPELR-42099 (SC), this Court held: “It is now settled that an accused person as in the instant case, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. See the case of Oghor V. The State (1990) 3 NWLR (pt. 139)484 at 502.

The test of the plea or defence of accident is always that if the act even though unlawful is not such that would from the view of a reasonable man, cause death or grievous bodily harm though death resulted therefrom, the person charged can only, at most be convicted of manslaughter. See the case of Thomas V. The State (1994) 4 SCNJ (pt.1)102 at 109, (1994)4 NWLR (pt.337)129 per Wali, JSC. It need be stressed that the act leading to the accident must be a lawful act done in a lawful manner.

Thus, for the event to qualify as accidental under Section 24 of the Criminal Code, it must be a surprise to the ordinary man of prudence, that is, a surprise to all sober and reasonable people. The test is always objective.

See Ademola v The State (1998) 1 NWLR (pt.73)683 at 692-693, (1988)3 SCNJ 68, It must always be borne in mind that Section 24 of the Criminal Code does not deal with an “act” but an “event” and the event within the meaning of the section, is what apparently follows from an act ….” The applicable law here is the provision of Section 27 of the Criminal Code, Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000 (Section 24 of the Criminal code Act).

It states: “…a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident.”

Accident is “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that would be reasonably anticipated”. Therefore, it is incumbent on the prosecution to disprove accident when raised by the accused/appellant. See 1. OLUDAMILOLA V. STATE (2010) 8 NWLR (pt.1197)565 at 582. 2. ACHUKU V. STATE SUPRA 113-1114, paras- H, A-B 3. SULE V. STATE (2009) ALL FWLR (pt.481)1977.

The version espoused by the appellant is contradictory to the evidence of the commander of the patrol team who testified as PW1, in the discharge of the prosecution’s burden in disproof of the defence of an accidental discharge claimed by the appellant. PW1 stated thus:- “I ordered the two Daniel to pick the motor-cycle into the vehicle so that he could take it to the station. They did so. When they put the motorcycle inside our vehicle that we should drive away to the station. I entered the vehicle that we should drive away to the station. I entered the vehicle.

The two Daniels entered the vehicle. The driver entered the vehicle, The accused person (appellant) was still standing with the motorcycle rider and his friend arguing. I shouted on the accused to enter the vehicle. The accused then ran and entered the vehicle from the side door and sat holding the driver. The vehicle was hilux. The vehicle was moving slowly so that the driver could make a U-turn and the accused opened the door and came down. The next thing I heard was the sound of a riffle I asked the driver to stop and be stopped. All of us came down.

I saw the accused standing while the motorcycle rider was lying on the floor… ” We refer to pages 57-58 of the Record of Appeal.

Under cross-examination, PW1 further testified that “when I asked the accused why he fired the motorcycle rider, he said he was confused”. The appellant at that point ought to have informed PW1 that it was an accident. This is in tune with the facts in ADEKUNLE V. THE STATE (2006) ALL FWLR (pt.332)1452; (2006) 14 NWLR (pt.1000)717, upon which the lower Court rejected the defence of accident. In ADEKUNLE’S case, the commander of the patrol team testified as PW2.

The evidence of PW2 was to the effect that on hearing the gunshots while he was about 100meters away from the scene of the incident, he shouted and asked who fired the gunshots. The appellant, who the witness saw walking towards the moving bus, answered in affirmative that it was he who fired the shots. On being asked why he fired the gunshots, the appellant kept mute. At this first opportunity to raise the defence of accidental discharge, the appellant did not tell his boss PW2 that it was the gun that fell down from his shoulder and started to discharge.

This earliest opportunity to raise the defence availed the appellant right at the scene of the incident. The fact that the defence was not raised instantly until much later in the appellant’s written statement Exhibit ‘A’ shows quite clearly that what the appellant raised in Exhibit ‘A’ is not a defence of accidental discharge but something else entirely that arose from his own imagination. It is no surprise therefore when the Court below rejected the defence of accident raised by the appellant in Exhibit A. See Utteh v The State (1992) 2 NWLR (pt.223) 257 at 274.

It is rather illogical that the Appellant would claim that he fired his rifle on the tarred road to scare the deceased when the deceased dragged him. It is noted from Exhibit 1 that the Appellant claims that the deceased dragged him and not the rifle. More amusing is the fact that the Appellant was not alone on the road, he was on duty with four other members of the team. He did not shout to call his teammates to rescue him and none of his teammates gave evidence to support his claim. Rather, he opted to fire the gun and send the deceased to his early grave.

Obviously, this was a trigger-happy police officer wasting the life of an innocent citizen of this country with a gun purchased with tax payer’s money. A police officer who has the duty to protect the citizen has now become a terror.

The bullet penetrated the deceased from the stomach and pulled out from his back. Definitely, the injurious occurrence was not unforeseen. It was intended because if the bullet penetrated through the deceased’s stomach, it is only safe to conclude that the shot was fired in front of the deceased. Thus, by firing the shot by himself, the act of the appellant cannot be said to be independent of his will and as such, the defence of accident cannot avail the appellant.

The trial Court disbelieved the Appellant as regards any claim of accident while the Court below painstakingly considered the defence of accident when the Court held thus: “The act of the Appellant was deliberate and calculated to teach the motorcycle (the deceased) a lesson. From the testimony of PW1 – PW3, there was an argument between the Appellant and the deceased. The Appellant who was already in the police vehicle heading to the police station, suddenly jumped down as the vehicle was making a U-turn, went back to the deceased, cocked his rifle and fired.

He couldn’t have jumped out of a moving vehicle waiting for an accident to occur, he jumped out in anger and in that anger fired the deceased. ” The Court below stated further in its summation as follows:- “It is therefore immaterial whether the bullet hit the tarred road first before hitting the deceased or hit the deceased before hitting the tarred road. The fact remains that the Appellant who was naturally angry when he jumped out of a moving vehicle ventilated his anger on the deceased when he cocked his rifle and shot at the deceased.

One may then ask where then lies the defence of accident? Majority of the prosecution witnesses were police officers each testified to the fact that the Appellant was already inside the police vehicle when he suddenly jumped out as the vehicle was making a U-turn and shot at the deceased. By firing the shot himself, the act of the Appellant cannot be said to be independent of his will….therefore, the defence of accident in the circumstance is an afterthought and not available to the Appellant.” See pages 206 – 207 of the Record of Appeal.

All the ingredients of the offence of murder were satisfactorily proved by the Respondent. No miscarriage of justice was occasioned as the defence of accident did not avail the Appellant having been so considered by the Court below. This Court cannot interfere with the concurrent findings of facts of the two lower Courts on the guilt of the Appellant and we urge my Lords with respect to resolve the issue in favour of the Respondent.

It is not correct that the Court below or even the trial Court failed to consider the defence of accident pushed forward by the appellant as the records bear out the true position which is that death of the deceased was not accidental but was the result of the deliberate act of the appellant to satisfy his anger against the deceased.

In any case, the law makes the Appellant criminally responsible for any excess force applied. By Section 305 of the Criminal Code Law, Cap.38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000, states thus, “any person authorized by law to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.” In this case, excess force was unwarranted as other police officers were available who could have separated any struggle.

Meanwhile, none of the police officers testified to there being any fight or struggle between the deceased and Appellant before a rifle triggered off.

Learned counsel for the appellant has canvassed copiously in his brief that the evidence of PW4 the IPO corroborated the defence of accident of the Appellant that he shot on the tarred road, the bullet deflected and killed the deceased.

The response of learned counsel for respondent which I accept is that it is immaterial whether the appellant shot on the tarred road or at the deceased, what is relevant in this case is that the appellant cocked his rifle himself and fired at an innocent man for a mere argument or exchange of words without more. The appellant deliberately fired the rifle purchased with tax payer’s money on an innocent and harmless citizen who he is paid to protect. I reiterate here that he is just a trigger-happy police officer who opened fire at the slightest or no reasonable provocation.

However, If PW4 corroborated the evidence of the Appellant that he fired the shot on the tarred road, it stills implicates the Appellant as he admitted in his defence at page 74 of the Records that he had been taught how to handle a rifle. Therefore, the Appellant ought to have known that shooting a gun on a tarred road would definitely ricochet. In any case, PW4 further disclosed that the act of the appellant was intentional when he testified under cross-examination that the Appellant should not have pointed the gun directly at the deceased as it was against their ethics.

The act of shooting directly at the deceased shows intention on the part of the Appellant. See page 71 of the Record. The Court of Appeal right held thus:- It is therefore immaterial whether the bullet hit the tarred road first before hitting the deceased or hit the deceased before hitting the tarred road. The fact remains that the Appellant who was naturally angry when he jumped out of a moving vehicle ventilated his anger on the deceased when he cocked his rifle and shot at the deceased. One may then ask where then lies the defence of accident?

Majority of the prosecution witnesses were police officers each testified to the fact that the Appellant was already inside the police vehicle when he suddenly jumped out as inside the police vehicle when he suddenly jumped out as the vehicle was making a U-turn and shot at the deceased. By firing the shot himself, the act of the Appellant cannot be said to be independent of his will… therefore, the defence of accident in the circumstance is an afterthought and not available to the Appellant.”

I would call attention to the previous written statement of the appellant and his oral testimony in the trial Court are materially contradictory as intention is inferred in Exhibit 1 which the Appellant admitted that he cocked his rifle and fired a shot while it is not so in the oral testimony of the appellant being that the appellant alleges accidental discharge which posture is clearly an afterthought. This is so because where an accused person makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable.

See Egboghonome v State (2001)2 ACLR 262 at 299-300 in which this Court applied the principle in RV Ukpong (1961) 1SCNLR 53; Stephen v The State (1986)5 NWLR (pt.46) 978; Edoko v State (2015) All FWLR (pt. 772) 1728 at 1753.

Learned counsel for the appellant had argued that the Court below erred in law when it substituted the life sentence for death and convicted the appellant for murder without considering the defence of accident. It needs be brought out at this point that the respondent had cross-appealed against the conviction and sentence of the trial Court. I have no hesitancy in discountenancing the stance of the appellant on the substitution of sentence from life to death by hanging.

This is by reason of the evidence on record and the findings of the Court of trial which found that the prosecution had proved the three essential ingredients of the offence of murder. For clarity at the risk of repetition, the ingredients are:- a. That the deceased died b. That it was the act of the appellant that caused the death. c. That the appellant had the intention to kill the deceased.

The trial Court having found out that the prosecution had effectively and beyond reasonable doubt proved the offence of murder, the Court lacked the discretion to deviate from the sentence so prescribed for murder to meet out the punishment provided for manslaughter. The appellant was charged at the trial Court for an offence of murder contrary to Section 326(1) of the Criminal Code, Cap 38, Vol.2, Laws of Akwa Ibom State of Nigeria 2000 and it stipulates mandatorily thus:- “…any person who commits the offence of murder shall be sentenced to death.” See Haruna v A.G.

Federation (2012)9 NWLR (pt.1306) 419; Ogualaji v A.G. Rivers state & Anor (1997) 5 NWLR (pt.508) 209 at 233. The Court below applied the appropriate law, the Respondent having cross-appealed against the conviction and sentence, to find the Appellant guilty of murder and sentenced to death by hanging. Therefore the Court below rightly relied on the case of State V. BABANGIDA JOHN (2013) 54.3 NSCQR 1903 at 1939, wherein this Court held that: “Once a judge finds an accused person guilty of culpable homicide, the only sentence he can pronounce is death.

A judge has no discretion to reduce death sentence to a term of years once the accused person has been found guilty. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide was wrong, it is a material irregularity in the proceedings the trial Court and this Court could remedy it so that substantial justice might be done. The correct judgment of the trial Court is that the respondent is/was sentence to death.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> ​ </br<>

See also the case of ODUNAYO V. STATE (2013) LPELR-21459. The Court below per Adah, JCA in addition to the lead judgment said: “in the instant case, the learned trial judge had found from the evidence that the Appellant is guilty of murder. The law requires as was held by Udo Udoma, JSC in Okpo VS. STATE (1972)2 SC24 that “once a person has been found guilty of having committed the offence of murder, it is mandatory that he be sentenced to death. No other form of punishment can be inflicted”.

This was in the context of the instant case, the expectation of the law…” Clearly, the Court below was a top of its duty in rectifying what was evidently a dereliction of duty on the part of the trial Court at the sentencing point in the light of the evidence and the conclusion within the realm of its primary functions of a trial Court which saw, heard and watched the demeanour of witnesses while they testified.

Therefore when the trial Court evaluated the evidence and exhaustively appraised the facts situating them to the offence charged which is that of murder, it follows that when it erroneously dished out the faulty punishment, the Court below was right in interfering at that stage and putting the record where it ought to be as provided for by the law.

In conclusion, the Court below having made findings concurrently with those of the trial Court which this Court cannot fault or disturb and going forward to redirect the appropriate punishment as covered by law. There is no basis to upset what the Court below did which I agree in toto with. The appeal has no merit and I do not have difficulty in dismissing it.

Appeal is dismissed as I affirm the judgment of the Court of Appeal which found the appellant guilty of murder and for him to be sentenced to death by hanging. Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I agree entirely with the reasoning and conclusion of my learned brother, MARY UKAEGO PETER-ODILI, JSC, in the judgment just delivered, that this appeal lacks merit and should be dismissed.

The facts giving rise to the appeal have been adequately summarised in the lead judgment, I adopt the summary in making my brief comments in support and for emphasis.

In a charge for murder, contrary to Section 326 (1) of the Criminal Code Cap. 38 Vol. Il, Laws of Akwa Ibom State, 2000,​ the prosecution must prove the following essential ingredients beyond reasonable doubt: 1. the death of the deceased; 2. that the death of the deceased resulted from the act of the accused person; 3. that the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence of his act.

See Chukwunyere Vs The State (2018) 9 NWLR (Pt.1624) 249; Okereke vs The State (2016) 1-2 SC (Pt. 111) 47; Olaiya vs The State (2017) 9-12 SC 86; (2017) LPELR – 43714 (SC) @ 23 A-D; Akpan vs The State (1994) 9 NWLR (Pt. 368) 247; Udor vs The State (2014) LPELR -23064 (SC). Once all three ingredients have been established beyond reasonable doubt, the accused person is liable to be convicted in accordance with the relevant law.

There is no discretion in sentencing where the law has made specific provisions for the sentence to be imposed, as in a capital offence. The only sentence pronounceable, where all the ingredients have been established, is death. See State vs Babangida John (2013) NSCQR 1903 @ 1939; Okpo vs The State (1972) 2 SC 24. In the instant case, the first two ingredients were proved beyond reasonable doubt.

As regards the third ingredient, the learned trial Judge found as follows at pages 82 and 83 of the record: “In his statement, Exhibit 1, the accused said when the deceased and the passenger blocked him and held him, he fired the shot on the ground in order to frighten them. PW1, PW2 and PW3 who are all police officers who were on patrol with the accused have been very consistent in their evidence that the accused on the order of the team leader, PW1 had come into the police vehicle along with other police officers. While the vehicle was trying to make a turn, the accused jumped down.

PW1, PW2 and PW3 were not contradicted or controverted in this regard. I do not believe that the deceased and the other passenger had in any manner blocked the accused person or dragged with him or struggled over the rifle. I do not believe that the deceased or the other passenger pulled the trigger. I believe that the accused person still being infuriated over the earlier quarrel between him and the deceased disobeyed the senior police officer and went out of the vehicle to confront the deceased.

I believed that he was the one who pulled the trigger and fired the shot. It is this shot that caused the death of the deceased. The 2nd ingredient of murder has therefore been established. In respect of the 3rd ingredient, the accused’s counsel in his address has so very forcefully argued that the accused did not intend to kill the deceased. Learned counsel had drawn the Court’s attention to Exhibit 1 where the accused said he corked his gun and fired on the tarred road to frighten the deceased so as to release himself from their grip.

Counsel argued that if the accused had intended to kill the deceased and the passenger he would have fired at them directly and killed them…. …PW1, PW2 and PW3 have consistently stated that they came out and found the deceased lying on the ground while the accused was standing by. Where death is a probable consequence of an act, the person doing the act is said to have intended the probable consequence.

Where a person pulls a gun and pointing towards another, fires the shot on the tarred road in front of that other person, the person firing the shot knows that there is a probable consequence of death by the ricocheting effect of the bullet. This is much more so given the fact that the accused person is a police officer. I therefore hold that the accused person’s act was done with the intention of causing death to the deceased.” (Underlining mine for emphasis)

After these meticulous findings, including a consideration of the defence of accident, which are fully supported by the evidence on record, the learned trial Judge quite inexplicably, concluded as follows: “I have found that the deceased Idongesit Okon Tom is dead. He died by the act of the accused. The accused had the intention to kill the deceased. However, having regard to the circumstances of the case, I found the accused person guilty of manslaughter and hereby convict him accordingly.” (Underlining mine for emphasis)

In light of the authorities just cited on the effect of a finding of guilt in a capital offence, the lower Court was on very firm footing when it held at pages 209-210 of the record, as follows: “Having found that the prosecution proved the relevant ingredients of the offence of murder and having held that the accused (appellant) had the intention to kill the deceased, the learned trial Judge had no reason or justification to reduce the offence to manslaughter and thereby reduced the mandatory sentence, which is death, prescribed in a murder case to life imprisonment.

That discretion was not exercised judicially and judiciously. It is in my humble view perverse.” Indeed, as rightly held by the lower Court at page 210 of the record, the learned trial Judge had no discretion to exercise in the circumstance.

The appellant’s sentence for manslaughter was rightly set aside and substituted with a conviction for murder and sentence of death by hanging.

I agree with the more elaborate reasoning of my learned brother in the lead judgment in dismissing this appeal for being devoid of merit. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Mary Ukaego Peter-Odili, JSC forwarded to me before now a draft of the judgment just delivered and I wholly agree with the reasoning, conclusion and order arrived therein. I shall make only a few comments in support of the judgment and for purpose of emphasis.

The position of the law is settled that in a case of murder, the burden is on the prosecution to prove beyond reasonable doubt that:- (a) The deceased has died; (b) It was the act of the accused that caused the death of the deceased; and (c) The accused person intended either to kill the deceased or cause him grievous bodily harm. See Iliyasu v State (2015) 11 NWLR (pt. 1469) 26; Ukpong v State (2019) 6 NWLR (pt. 1667)1.

In this case, there is no dispute with respect to the first and second ingredients that the deceased, Idongesit Okon Tom, is dead and that his death was caused by the act of this Appellant. The only argument put forth by the Appellant to my understanding is that he had no intention of killing the deceased, as such, his death was accidental.

In the light of Section 27 of the Criminal Code, Cap. 38, Vol. 2, Laws of Akwa Ibom State, 2000, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident. The Appellant in this appeal seeks to take refuge under that law to displace the third ingredient proveable to establish the case of murder.

This Court has variously construed an accident to be an event which is a result of an unwilled act and without the fault of the person alleged to have caused it. See Aliu Bello & 13 Ors v Attorney General of Oyo State (1986) 5 NWLR (pt. 45) 828; Oludamilola v State (2010) 8 NWLR (pt. 1197) 565 at 581.

Indeed in the case of Thomas v The State (1994) 4 NWLR (pt. 337) 129, it was held that an accused person, cannot take refuge on a defence of accident for a deliberate act even if he did not intend the eventual result. I am therefore unable to see how the act of cocking a gun and firing same to cause the death of the deceased was an accident. The defence cannot avail the Appellant.

It is from the foregoing and the fuller reasons in the lead judgment that I too, see no merit in this appeal. I also dismiss the appeal and affirm the judgment of the Court below. Appeal Dismissed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mary Ukaego Peter- Odili, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is lacking in merit and ought to be dismissed. The confessional statement of the Appellant in Exhibit 1 and his oral testimony at trial are contradictory.

After stating in Exhibit 1 that he cocked his gun and shot at the tarred road to scare the deceased and the passenger he carried, he stated in his oral evidence that they dragged the gun with him and it was one of them who put off the safety and pulled the trigger, causing the rifle to explode. It is trite that the inconsistency rule does not apply to an accused person who resiles from his extrajudicial statement.

Where the confessional statement is voluntary and true, but contradicts the evidence of the accused in Court, a conviction can be made based on the retracted confessional statement. The two lower Courts were therefore right to label the Appellant’s oral testimony as an afterthought. See SIMON V. STATE (2017) LPELR – 41988 (SC); SMART V. STATE (2016) LPELR – 40728 (SC).

Furthermore, the defence of accident raised by the Appellant is not available to him because as rightly held by the two Courts below, his act of shooting the deceased was deliberate. It is settled beyond equivocation that the defence of accident will not admit a deliberate action, even if the accused person did not intend the result of his action. See the cases of ADEGBOYE V. STATE (2017) LPELR – 42099 (SC); ADEKUNLE V. STATE (2006) LPELR – 107 (SC); THOMAS V. STATE (1994) LPELR – 3239 (SC).

In view of the above and the fuller reasons contained in the lead judgment, I join my learned brother in dismissing the appeal. I affirm the judgment of the Court of Appeal which found the Appellant guilty of murder and sentenced him to death by hanging. Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice MARY UKAEGO PETER-ODILI. 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

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment) : The appeal is against the judgment of the High Court of Adamawa State, presided over by Nathan Musa, J (as he then was) hereafter referred to as the trial Court, delivered on 22nd July, 2021.

At the trial Court, the Respondents as Plaintiffs claimed against the Appellants for the following reliefs: (a) “The sum of N1,300,000.00 (One Million and Three Hundred Thousand Naira) being money they borrowed from late Benjamin Nwazue on or about August 14th, 2017 which they have failed, refused or neglected to repay in spite of persistent demand by Plaintiffs and their Solicitor. (b) The sum of N2,000,000.00 (Two Million Naira) being general damage for breach of contract. (c) 10% interest per annum on the judgment sum till full liquidation. (d) Cost of this action to be estimated at N250,000.” In response, the Appellants filed their joint statement of Defence and counter-claimed against the Respondents as follows: (a) “A declaration that the act of the 2nd Respondent holding unto the 1st counter-claimant’s cheque No. 36261400 and cheque clearance is illegal. (b) The return of the undated cheque No. 36261400 and cheque clearance of the 1st counter-claimers. (c) Perpetual injunction restraining the Respondents, their agents, privies, assigns or anybody by whatsoever name call (sic) from using even the photocopy of cheque No. 36261400 and the cheque clearance of the 1st Counter-claimer. (d) The sum of N3,000,000.00 (Three Million Naira) as general damages for holding unto the cheque No. 36261400 and the cheque clearance of the 1st counter-claimer. (e) Cost of the suit to be assess (sic) at N450,000.00 (Four Hundred and Fifty Thousand Naira).” At the trial, the Respondents called a sole witness (2nd Respondent) and tendered seven (7) documents which were admitted in evidence as Exhibits ‘A’, ‘B’, ‘B1’, ‘B2’, ‘C1’, ‘C2’ and ‘D’ respectively.

The Appellants also called a sole witness (the 2nd Appellant) and tendered no document. ​The background facts are that at the trial, the 2nd Respondent testified as PW1, a sole witness who testified to the effect that she is the Administrator of the 1st Respondent’s estate and that while going through the documents of her late husband Benjamin Nwazue, she discovered documents that showed that the Appellants borrowed money from her late husband which had not been paid back. The letter of Administration was admitted in evidence and marked as Exhibit “A”.

The Appellants’ application letter for the loan, the Mbula Traditional Council Clearance Cheque and an undated Union Bank Plc. cheque issued in the name of the 2nd Appellant were admitted in evidence as Exhibits ‘B’, ‘B1’ and ‘B2’ respectively. The Respondents’ solicitors’ demand letter to the Appellants and the Appellants’ solicitors’ response to the demand letter were admitted in evidence as Exhibits ‘C’ and ‘C1’ respectively.

The 2nd Respondent’s late husband’s statement of account with First Bank Plc., showing that her husband withdrew the said amount of N1,300,000.00 at the same time the Appellants made the loan application, the statement of account was tendered as Exhibit “D”. The 2nd Respondent’s evidence was said not to have been challenged except that under cross-examination the PW1 testified that she knew the 2nd Appellant’s signature because he had collected a loan from her after the death of her late husband.

The 2nd Appellant testified as the “DW1” and gave evidence to the effect that he is the secretary to the 1st Appellant and that he has been collecting loans from late Benjamin Nwazue for years. It was made out that the late Benjamin Nwazue did not give loans to corporate organizations and that the Appellants would normally write an application letter on the 1st Appellant’s letter head requesting for a loan and that 2nd Appellant (DW1) and the 3rd Appellant both would sign the clearance cheque, while he the 2nd Appellant would sign the cheque and hand the documents over to late Benjamin Nwazue.

It was made out by the 2nd Appellant that the late Benjamin Nwazue did not give them the loan, before he could retrieve the documents, Benjamin Nwazue passed away. ​The 2nd Appellant made out that the transaction in dispute was not the first transaction, the 1st Appellant had previous transactions with the late Benjamin Nwazue. Also, that the late Benjamin Nwazue would normally give the 2nd Appellant the loan in cash and he would give him in return a postdated cheque. See, page 109 of the printed records of Appeal.

The cheque would normally be used to cash or pay back the loan by the 2nd Appellant. The 2nd Appellant gave evidence to the effect that he never approached the 2nd Respondent to retrieve the documents from 2017 when the late Benjamin Nwazue died till date. Further, that all the loan transactions he had with the late Benjamin Nwazue was always in cash and that the transaction that resulted in the present action was in August, 2017 when the first installment was to be paid, as per Exhibit ‘B’, see pages 19–110 of the printed records of appeal.

At the close of the trial, the trial Court gave judgment in favour of the Respondents and the counter-claim of the Appellants failed. The Appellants unhappy with the decision of the trial Court appealed to this Court.

A sole issue was formulated by the Appellants for the determination of the appeal thus: “Whether based on the evidence presented at the trial Court, the Respondents have proved their claims to warrant the grant of the reliefs sought before the trial Court vis-a-vis the Appellants’ counter–claim?” (Distilled from grounds 1 & 2.) The Respondents on their part also formulated a sole issue as follows: “Whether the Respondents by the evidence adduced before the trial Court, proved their case against the Appellants to warrant the judgment entered in their favour?” (Distilled from Ground 1 of the Notice of Appeal).

In arguing the appeal, the learned counsel to the Appellants F. R. Baiyo, Esq., relied on his brief of argument filed on 24/1/22, deemed properly filed and served on 8/3/22, learned counsel adopted same as his oral argument in this appeal in urging us to allow the appeal and set aside the judgment of the trial Court and grant the counter-claim of the Appellants. In arguing his sole issue, it was submitted that the Respondents failed in discharging the burden of proof placed on them by law at the trial Court which is preponderance of evidence.

It was argued that he who wants the Court to give judgment in his/her favour or the existence of some facts must prove that those facts exist, Section 131 of the Evidence Act, 2011. ​

It was submitted that the Respondents asserted that the Appellants collected a loan from the late Benjamin Nwazue on or about 14th August, 2017. The Exhibits tendered and relied upon by the Appellants were highlighted under the background facts above.

Exhibits ‘B’, ‘D’ and ‘B2’ were referred to as the most appropriate, Exhibit ‘B’ is an application letter for the alleged loan agreement written on 14th August, 2017, page 19 of the printed records, Exhibit ‘D’ showed a cash withdrawal said to have been the amount loaned to the Appellants, made on 11th August, 2017, page 45 of the records and Exhibit ‘B2’ an undated cheque of the 1st Appellant issued in the name of the 2nd Appellant.

It was submitted that the cheque No. 36261400 was issued in the name of the 2nd Appellant not in the name of the late Benjamin Nwazue as claimed by the 2nd Respondent. It was highlighted that the application letter for the loan Exhibit ‘B’ was written three (3) days after the withdrawal of the sum of N1,300,000.00 shown in Exhibit ‘D’ of 11th August, 2017 but, that there was nothing to show who the cash payment was made to with reference to paragraph 7 of the Amended Statement of Claim. It was submitted that the evidence adduced by the Respondents as to the cash payment was inconclusive.

See, MATANMI VS. DADA (2013) ALL FWLR (PT. 682) PAGE 1638, NKRUMAH VS. EBUZOEME (2013) ALL FWLR (PT. 681). It was argued that there was no acknowledgment of receipt of the money and no evidence of the cash payment, transfer or deposit into the account of any of the Appellants. See, OBIDIGWE VS. K.K. C. LTD (2016) ALL FWLR (PT. 815) PAGE 277. It was submitted that there was no issuance of two dated but, dishonoured cheques of N650,000.00 each in the name of Benjamin Nwazue as collateral of the loan as captured in the body of Exhibit ‘B’.

It was argued that there was no evidence that any of the Appellants had collected the loan on behalf of the 1st Appellant. ​It was contended by the learned counsel to the Appellants that the trial Court was wrong to have arrived at its decision based on circumstantial evidence. It was argued that from Exhibit ‘B’, without conceding that any money was loaned to the 1st Appellant, the sum of N650,000.00 could have been refunded to the late Benjamin Nwazue before his demise.

We were urged to evaluate the evidence before the Court as it was not properly done by the trial Court; reliance was placed on the case of PROSPER VS. STATE (2016) ALL FWLR (PT. 861) PGS. 1230-1231. Further, that the Appellants proved their counter-claim while reference was made to Exhibits ‘B’, ‘B1’ and ‘B2’ which emanated from the 1st Appellant and endorsed by the 2nd and 3rd Appellants.

It was concluded that the Respondents’ claim is speculative and attracts the award of damages against them. ​In response, the learned counsel to the Respondents; Ruth Gbaa, Esq., relied on her brief of argument filed on 1/4/22, as her argument in the appeal in urging us to uphold the decision of the trial Court and dismiss the appeal with costs. In arguing her sole issue, it was submitted that the initial burden of proof initially lies on the Plaintiff; the rebuttal of issues in course of proceedings may shift from the Plaintiff to the Defendant and vice-versa.

See, FEDERAL MORTGAGE FINANCE LTD VS. EKPO (2004) 2 NWLR (PT. 856) 100. It was submitted that Exhibits ‘B’ – ‘B2’ tendered by the Respondents shows the Appellants’ intention to create a legal contractual relationship with the late Benjamin Nwazue and fulfilled all the requirements to perfect the loan to the effect that Exhibits ‘B’ – ‘B2’ were duly endorsed by the 2nd and 3rd Appellants as secretary and accountant of the 1st Appellant respectively. It was argued that OBIDIGWE VS. K.K.C.

LTD (2016) (supra) cited and relied on by the learned counsel to the Appellants is not applicable to the present case. Also, that the cases relied on by the Appellants border on land transactions and not recovery of debt arising from breach of contract and that PROSPER VS. STATE (supra) is a criminal case bordering on armed robbery. It was submitted that the only defence the Appellants had at the trial was their averment in paragraphs 3, 4, 5 and 12 of their joint statement of defence which crumbled under the cross-examination of the DW1 which established the Respondents’ case.

It was submitted that the 1st Appellant had always collected loans from the late Benjamin Nwazue and that the Appellants failed to prove that in the previous transactions, the loan was paid into the 1st Appellant’s account. Further, that the demand for Exhibits ‘B’ – ‘B2’ was a formality, the Appellants had to fulfill.

In countering paragraph 13 of the joint statement of defence of the Appellants, it was contended that the 2nd and 3rd Appellants had always done the leg work on behalf of the 1st Appellant in obtaining the loan, writing, signing and handing over of Exhibits ‘B’ – ‘B2’ on behalf of the 1st Appellant to the late Benjamin Nwazue. Further, that Exhibit ‘D’ relied on by the trial Court showed that the late Benjamin Nwazue would normally hand over cash to the borrower before collecting documents as evidence of the transaction.

The Appellants’ argument as to the gap in the dates in paragraphs 3.2–3.5 of the Appellants’ brief of argument was said to hold no water. Further, that the Appellants in paragraphs 5 and 6 of their joint statement of defence (page 28 of the records) admitted that Exhibits ‘B1’ and ‘B2’ were made in relation to the transaction in dispute cannot – turn around to argue to the contrary. See, UDEORAH VS. NWAKONOBI (2003) 4 NWLR (PT. 811) 643 at 674 – 675, PARAS. H-E.

On the duty of the Appellants to raise substantive grounds of appeal against specific findings of the lower Court, reliance was placed on HERITAGE BANK LTD. VS. BENTWORTH FIN. (NIG.) LTD. (2018) 9 NWLR (PT. 1625) 420 at P. 436, PARAS. B-C. It was submitted that the evidence of the 2nd Respondent to the effect that the loan had not been repaid was unchallenged, page 43 of the compiled records. It was contended that the implication is that the Appellants accepted the truth of the matter led in evidence. See, IWUNZE VS. F.R.N. (2013) NWLR (PT. 1334) P. 119.

Further, contrary to the agreement of the learned counsel to the Appellants, it was submitted that the trial Court properly evaluated the evidence before the trial Court, before arriving at its decision. Further, that the Appellants failed to prove that the decision of the trial Court is perverse or occasioned a miscarriage of justice. See, F.B.N. PLC. VS. OZOKWERE (2014) 3 NWLR (PT. 1395) 439 at P. 466, PARAS. B-D.

On the award of damages, it was submitted that since there was a clear breach of legal duty to the Respondents by the Appellants, the Respondents were naturally entitled to the damages awarded by the trial Court. See, E. B. PLC. AWO OMAMMA VS. NWOKORO (2012) NWLR (PT. 1321) PAGE 488 at 515 and YA’U VS. DIKWA (2001) 8 NWLR (PT. 714) PAGE 127 at 146 PARAS. F-G. On the award of costs, it was submitted that costs follow events, since the Respondents proved their case at the trial Court, they were entitled to costs.

In conclusion, on the proof of the Appellants’ counter claim, it was submitted that the sole issue formulated by the Appellants for determination did not arise from any of the Appellants’ grounds of appeal. See, O.M.T.C. LTD. VS. B.V. LTD. (2011) 9 NWLR (PT. 1252) 303 at PG. 310, PARA. B. We were urged to strike out the Appeal as there is no competent issue for determination in the brief of argument filed by the Appellants.

I would recouch the sole issue formulated by each of the parties thus: Whether by the evidence adduced before the trial Court, the Respondents proved their case against the Appellants to warrant the judgment given in their favour and the failure of the counter-claim? In civil cases, proof is based on the balance of probabilities. The procedure for determining where the evidence preponderates was outlined in the case of MOGAJI & ORS. VS. ODOFIN & ORS (1978) 4 SC 91 at 94. The person who is able to produce preponderance of credible evidence, will have judgment in his favour. See, DAODU VS.

NNPC & ORS (1998) LPELR–927 (SC) P. 17, PARAS. B-D and ODUOLA & ORS VS. COKER & ORS (1981) LPELR–2254 (SC) PP. 38–39, PARAS. G-A. The burden of proof means the burden of adducing evidence, this may shift depending on the preponderance of evidence. It rests on the party who would fail if no evidence at all or more evidence was led on either side, a decision is taken on a balance of probabilities based on preponderance of evidence. See, SAKATI VS. BAKO & ANOR (2015) LPELR–24739 (SC) P. 34, PARAS. C–E.

In discharging the evidential burden of proof, the Respondents tendered the documents earlier highlighted in this judgment. Exhibit ‘B’ is a document titled “Application for a loan of One Million Three Hundred Thousand Naira (N1,300,000.00), Exhibit ‘B’, is a cheque clearance of the 1st Appellant endorsed by the 2nd and 3rd Appellants as Secretary and Accountant of the 1st Appellant respectively, Exhibit ‘B2’ is an undated cheque of One Million Three Hundred Thousand Naira (N1,300,000.00) issued in the name of the 2nd Appellant.

These Exhibits created a contractual relationship by the Appellants with the late Benjamin Nwazue in fulfilling the requirements for the loan transaction. The Respondents pleaded how the late Benjamin Nwazue loaned out the money in paragraph 8 of the Respondents’ Amended Statement of Claim, page 66 of the printed records as follows: 8. “The plaintiffs aver that the usual procedure of the late Mr. Benjamin Nwazue in business was to obtain the stated documents from people who borrow money from him after he advanced the loan to them, mostly in cash, as in the present case.

These documents serve as evidence and collateral at the same time.” ​As highlighted by the learned counsel to the Respondents, the Appellants in response to the averment above in defence averred in paragraphs 3, 4, 5 and 12 of their joint statement of defence as follows: 3. “That late Benjamin Nwague (sic) told the 2nd Defendant that he (late Benjamin Nwague (sic) doesn’t give loan to corporate organization but to individuals. 4.

That after further request, late Benjamin Nwague (sic) agree (sic) that he will oblige them with the loan facilities if they can provide evidence of how he (late Benjamin Nwague (sic) can get his money easily. 5. That both late Benjamin Nwague (sic) and the 2nd Defendant agreed that Mbula Traditional Council shall write an application for loan sign its letterhead paper; sign a sample of cheque and cheque clearance for easy processing of the money when the time is due. 12.

That Mbula Traditional Council as a Corporate Institution doesn’t collect loan cash, but through financial institution for proper accountability and so that the council will know where did the money come (sic) from, how much was remitted and how much the remaining balance etc.” ​Contrary to the Appellants’ defence, their sole witness the DW1 (2nd Appellant) in his testimony under cross examination testified at pages 109 – 110 as follows: “We have been doing business with 1st Plaintiff for a long time.

After the death of 1st Plaintiff I have continued doing business with his wife. … I have been borrowing money from 1st Plaintiff for three years before he died. The 1st Plaintiff always gives one the loan in cash. I give him postdated cheque as collateral. It is true that it is the cheque given to 1st Plaintiff that is cashed by 1st Plaintiff. It is true that the 1st and 2nd Defendants have been having transaction with 1st Plaintiff. I never explain this present transaction to wife of late Benjamin because she never asked me about this transaction.

This particular transaction took place in August 2017 1st installment payment on August 2017.” ​From the above evidence of the DW1, the late Benjamin Nwazue had been transacting with the Appellants for long before his demise, which the Appellants continued with his wife the 2nd Respondent (PW1) after the death of her late husband. The DW1 testified to the effect that he would normally collect the loan in cash while he gives a post-dated cheque as collateral.

The Appellants did not prove that the previous loans were paid into an account belonging to the 1st Appellant or anybody else as to expect the loan that led to the present case to have been paid into an account and were wrong to have pleaded in paragraph 13 of their joint statement of defence thus: 13. “That Mr.

Benjamin Nwague (sic) has never transferred money into the account of Mbula Traditional Council nor has he ever given any cash to anybody to be giving (sic) to Mbula Traditional Council as nobody has the authority to collect cash on behalf of Mbula Traditional Council.” The onus was on the Appellants to prove that the previous loan transactions with the late Benjamin Nwazue were paid into the 1st Appellant’s account and that visible authority was given to the 2nd and 3rd Appellants in the past before they collected loans from the late Benjamin Nwazue on behalf of the 1st Appellant.

He who asserts proves. See, SIWONIKU VS. ODUFUWA (1969) LPELR–25495 (SC) PP. 6–7, PARAS. D–B and in SHARING CROSS EXAMINATIONAL SERVICES LTD. VS. UMARU ADAMU ENTERPRISES LTD. & ORS (2020) LPELR–49567 (SC) PP. 7–8, PARAS. F–A his lordship Eko, JSC on assertions held thus: “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist: Section 131 (1) of the Evidence Act, 2011.” See, PHILLIPS VS. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD. (2013) 1 NWLR (PT. 1336) 618 and MR.

SUNDAY OKEGBE & ORS VS. EJIGHE AKPOME & ORS (2013) LPELR–21969 (CA).

There was nothing on record to show that the 2nd and 3rd Appellants were usually given visible authority by the 1st Appellant before they could transact for the previous loans except through the likeness of Exhibits ‘B’ – ‘B2” on behalf of the 1st Appellant as averred by the Appellants jointly and in line with the testimony of the DW1 under cross-examination, pages 109–110 of the printed records of appeal to the effect that the 2nd Appellant would normally collect the loan in cash and would give the late Benjamin Nwazue a post-dated cheque as collateral. ​I am at one with the learned counsel to the Respondents’ argument that Exhibit ‘D’ the statement of account from First Bank Plc which the trial Court relied on showed the withdrawal of N1,300,000.00 on 11/8/17, which preceded Exhibits ‘B’ – ‘B2’, which was in line with the late Benjamin Nwazue’s habit of handing over the cash loans to the borrower before collecting documents evidencing the transaction.

The Appellants cannot rightly argue that Exhibits ‘B1’ – ‘B2’ had nothing to do with the late Benjamin Nwazue when in paragraphs 5 and 6 of their joint statement of defence at page 28 of the printed records admitted that Exhibits ‘B1’ and ‘B2’ were made in relation to the transaction in dispute. In paragraphs 5 and 6 of the Appellants’ joint statement of defence, it was pleaded thus: 5.

“That both late Benjamin Nwazue and the 2nd defendant agreed that Mbula Traditional Council shall write an application for loan on its letterheaded paper, sign a sample of cheque and cheque clearance for easy processing of the money when the time is due. 6.

That the 2nd defendant met the 3rd defendant to oblige him with the copy of cheque and cheque clearance so that he can show late Benjamin Nwague (sic) as the council is planning to collect loan from him.” From the above paragraphs 5 and 6, it is clear that the Appellants have admitted the loan transaction and cannot deny that Exhibits ‘B1’ and ‘B2’ have no connection with late Benjamin Nwazue. The law is that facts admitted need no further proof. See, MBA VS. MBA (2018) LPELR–44295 (SC) PP. 24–25, PARAS. F-E, SOLANA VS. OLUSANYA & ORS (1975) LPELR–3097 (SC) P. 10, PARAS. A–B and MOZIE & ORS VS.

MBAMALU & ORS (2006) 12 SCM (PT. 1) 306 at 317. It is the law that whatever fact is admitted needs no further proof, such fact is deemed established. Any admitted facts, or fact not disputed or not specifically denied, need no further proof and will be deemed established. I hold that Exhibits ‘B’, ‘B1’ and ‘B2” examined with the Appellants’ pleadings in their paragraphs 5 and 6 of their statement of defence established clearly that there was a loan transaction between the 1st Appellant and the late Benjamin Nwazue.

The sole witness to the Respondents was the 2nd Respondent who testified as the PW1, whose evidence was unchallenged as to the fact that the 1st Appellant had obtained a loan of N1,300,000.00 through the 2nd and 3rd Appellants which had not been repaid. The evidence of the PW1 was not shaken under cross-examination, page 43 of the printed records of appeal. The Court is enjoined to act on unchallenged evidence. See, OMOREGBE VS. LAWANI (1980) LPELR–2655 (SC) P. 16, PARAS. A–D, MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR–47042 (SC) PP. 53–54, PARAS. B–C and GOYANG KAYILI VS.

ESLY YILBUK & ORS (2015) LPELR–24323 (SC) P. 36, PARA. A. Where evidence given by a party (as in this case) to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the proceedings to act on the unchallenged evidence before it. The trial Court was right to have acted on the unchallenged evidence of the PW1.

At pages 109–110 of the printed records, the sole witness of the Appellants, the 2nd Appellant testified as the DW1 and gave details of his loan transactions on behalf of the 1st Appellant with the late Benjamin Nwazue before his demise and continued with the 2nd Respondent (PW1). The DW1 acknowledged the transaction in question to have taken place in August, 2017. The evidence of the DW1 clearly established the Respondents’ case. The DW1 also confirmed that the loans were usually given out in cash by the late husband of the 2nd Respondent.

The trial Court was also right to have acted on the evidence of the DW1. The Appellants had alleged that the trial Court did not properly evaluate the evidence before it and that the decision of the trial Court is perverse. In my earlier decision in ADINGARWA & ORS VS. ASSANDARIYU (2021) LPELR–54645 (CA) PP. 29–30, PARAS. E–C, I defined a perverse finding or decision thus: “The question is: what is a perverse decision? A perverse decision was defined by the Apex Court in ATOLAGBE VS.

SHORUN (1985) 1 NWLR (PT. 2) 360, where his lordship Oputa, JSC held thus: “Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.” See also, UDENGWU VS. UZUEGBU & ORS (2003) 13 NWLR (PT. 836) 136, ADIMORA VS. AJUFO (1988) 3 NWLR (PT. 80) 1 and MAMONU & ANOR VS.

DIKAT & ORS (2019) LPELR–46560 (SC).” A perverse decision is arrived at where the Court draws the wrong inference from the evidence before the Court thereby occasioning a miscarriage of justice. There is nothing in the judgment of the trial Court that shows the trial Court drew the wrong inference from the evidence before it and arrived at a wrong decision occasioning a miscarriage of justice. There is also nothing to show that the trial Court took into consideration of things it ought not to have taken into account. See, IYAWE VS. ERIYO (2022) LPELR–57139 (CA) and IKEMBA VS.

PYRAMMIDI COMPANY MIGERIA LTD (2021) 6 LPELR–56145 (CA) P. 33, PARAS. C–E. There is nothing to show that the decision of the trial Court is perverse and occasioned a miscarriage of justice. I hold that the trial Court properly evaluated the evidence before the Court. The learned counsel to the Appellants alleged that there was no basis for the trial Court to have awarded the sum of N200,000.00 (Two Hundred Thousand Naira) as general damages to the Respondents. General damages are awarded to assuage such a loss, which flows naturally from the defendant’s act.

It needs not be specifically pleaded; it is enough if it is averred. They are presumed to be the direct and probable consequence of that complained of. A claim for damages could arise if there is a breach of any legal duty to the claimant. Damages are compensation in money given to a successful plaintiff as a compensation for loss or harm. There is no hard and fast rule about the quantum but, the assessment is that of a reasonable man on the street, the inconvenience suffered and the surrounding circumstances of the particular case would be taken into consideration.

The quantum of damages need not be pleaded or proved, it flows from the defendant’s act. See, GTB VS. FOCUSED EXPERIENTIAL MARKETING LTD (2021) LPELR–53188 (CA) P. 51, PARAS. A–E, ACCESS BANK PLC VS. NIMA SALMAN MANN (2021) LPELR–52896 (CA) P. 21, PARAS. A–E, COSCHARIS GROUP (NIG) LTD & ANOR VS. ORUGBO (2021) LPELR–53350 (CA) PP. 17–18, PARAS. E–A and ALLASURE VS. ODEZEH (2021) LPELR–53531 (CA) P. 14, PARAS. B–D. I hold that the trial Court was right to have awarded the general damages in favour of the Respondents.

On the award of costs in favour of the Respondents, it is trite that costs follow events. The Respondents having successfully prosecuted their matter at the trial Court were entitled to costs. In NNPC VS. CLIFCO NIG. LTD (2011) LPELR–2022 (SC) P. 23, PARAS. D–A, his lordship Rhodes–Vivour, JSC summed up the essence of the award of costs thus: “The award of cost is entirely at the discretion of the Court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement.

In making an award of costs the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See ANYAEGBUNAM VS. OSAKA (1993) 5 NWLR (PT. 294) P. 449, OBAYAGBONA VS. OBAZEE 1972 5 SC P. 247.” See, OJIEGBE & ANOR VS. UBANI & ANOR (1961) LPELR–25060 (SC) P. 6, PARA. F and AKINBOBOLA VS. PLISSON FISKO NIGERIA LIMITED & ORS (1991) LPELR–343 (SC) P. 8, PARAS. B–C. I hold that the cost awarded in favour of the Respondents by the trial Court was not out of place.

On the Appellants’ counter-claim, a counter-claim is a fresh and independent claim; the burden of proving same is on the counter-claimant. It is a distinct action from the main claim. In OGBONNA VS. AG OF IMO STATE & ORS (1992) LPELR–2287 (SC) P. 33, PARAS. B–G his lordship Nnaemeka – Agu, JSC defined a counter-claim thus: “… I believe it has been settled by several decided cases that a counter–claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a Court so grants leave.

Indeed, not only can a defendant apply for summary judgment on his counter-claim but, also a plaintiff may counter-claim on defendant’s counter-claim. (See, RENTON GIBBS & CO. VS. NEVILLE (1990) 2 Q. B 818).”

See, OROJA & ORS VS. ADENIYI & ORS (2017) LPELR–41985 (SC) PP. 11–13, PARAS. E–B and LOKPOBIRI VS. OGOLA & ORS (2015) LPELR–40838 (SC) PP. 64–65, PARAS. E–A. A counter-claim from its definition is like a cross action and not a defence, therefore it must be proved on its own in the same way as the claim that has to be proved on its merits. See my earlier decisions in ULLAM & ORS VS. USMAN (2019) LPELR–48917 (CA) PP. 15–16, PARAS. F–D and BUSARI & ANOR VS. KASANDUBU & ANOR (2016) LPELR–45671 (CA) PP. 24–25, PARAS. E–B.

In the present appeal, the appellants who counter-claimed made no effort at all to lead evidence in respect of their counter-claim, talkless proof of same. I hold that the counter-claim was not proved. In the final analysis, the sole issue as reformulated is resolved against the Appellants. I hold that the appeal is without merit; I dismiss it in its entirety and affirm the judgment of the trial Court. I award costs of N100,000.00 (One Hundred Thousand Naira) against the Appellants.

FATIMA OMORO AKINBAMI, J.C.A.: I have had a review of the judgment of my learned brother, Chidi Nwaoma Uwa, JCA, and I am in agreement that this appeal lacks merit. The trial Court has painstakingly evaluated the evidence before it, before coming to its conclusion. It is a settled principle of law that, where a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See, Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v.

Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC. I also dismiss this appeal and affirm the decision (judgment) of the trial. I abide by the order on costs.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege to read in advance, the draft copy of the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA, JCA. My lord has exhaustively dealt with the issues contained in the lead judgment and I am in agreement with the decision arrived at, dismissing the appeal in its entirety and affirming the decision of the lower Court. ​I abide by the orders in the lead judgment including the order as to costs.

Judgment

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment delivered on 17th July, 2018 in the High Court of Bauchi State holden at Bauchi. In the High Court (the Court below), the Appellant was convicted for the offence of culpable homicide contrary to Section 221 of the Penal Code. He was sentenced to a prison term of twenty-five (25) years. The facts of the case as can be made out from the evidence of the witnesses called by the Respondent include the following salient ones.

According to the PW1 he was standing with his brother at about 8:30pm when the Appellant and one other person approached and the Appellant asked them a couple of questions and then stabbed PW1’s brother with a knife on the chest. The PW1 went to the Special Anti-Robbery Squad and reported the incident. When members of the Special Anti-Robbery Squad went to the scene they were told that the victim had been taken to the hospital. The PW1 went home to report before proceeding to the hospital.

Then he was told that the victim of the stabbing had died. ​In his defence, the Appellant said that some people came to borrow his motorcycle.

He told them it was night. He was going home. One of them brought out a knife and chased the Appellant. The Appellant took to his heels and started shouting for help. People gathered and asked him what was happening. He told them that somebody wanted to snatch his motorcycle. The following day while he was discussing with some people, those who approached him the previous night came again and said they were going to snatch the motorcycle. They brought out three knives. One cut him on his arm. He used his motorcycle lock to hit one of the attackers.

According to the Appellant the weapons tendered in Court were not recovered from him. On 13th July, 2021 the Appellant applied for and was granted extension within which to appeal against his conviction and sentence by the Court below. Upon the grant of the application, the Appellant on 22nd July, 2021 filed a notice of appeal containing two grounds of appeal.

From the two grounds of appeal, the Appellant in an Appellant’s brief filed on 15th September, 2021 presented the following lone issue for determination: Whether the prosecution had proved the essential ingredients of the offence of culpable homicide against the Appellant? (Grounds 1 and 2). The Respondent formulated a similar issue thus: Whether the prosecution has proved the offence of culpable homicide beyond reasonable doubt against the appellant to warrant his conviction. (Distilled from Grounds 1 and 2).

Arguing the appeal learned counsel for the Appellant contended that the Respondent did not satisfy the requirements of the law as regards the ingredients of the offence charged. The Court below was therefore wrong in holding that it did. It was contended that the entire case of the Respondent revolved around the mere proof that the Appellant stabbed the deceased. This fact simpliciter did not establish the key ingredients of the offence charged, it was argued.

The Court was referred to the vital ingredients of culpable homicide which are: (i) the death of a human being; (ii) the act of the accused which caused the death; and (iii) the accused knew that death would be probable but not just a likely consequence of his act. The Court was referred to Dahiru v The State (2018)14 NWLR (Pt.1640) 567 at 577. ​It was submitted that these ingredients must be proved beyond reasonable doubt by the prosecution. Failure to prove these elements conjunctively entails that the charge fails, it was submitted.

The Court was referred to Adamu v State (2019) LPELR-46902 (SC), Oforlete v. State (2000) 1 LPELR-2270 (SC) and Jimoh v State (2014) 3 MJSC 1 at 38. The prosecution, it was submitted, has a duty to prove that the specific act of the Appellant which caused the death of the deceased was the stabbing of the deceased. This is an ingredient of the offence to be proved beyond reasonable doubt, it was submitted. This cannot be presumed as the Court below did, it was argued.

That merely because the Appellant allegedly stabbed the deceased and he died of injuries sustained thereof did not establish his guilt. None of the five witnesses called by the Respondent gave such evidence, it was contended. The Court was referred to State v Ogbubunjo & Anor (2001) LPELR -3223 (SC) 12. ​Evidence of PW1, it was contended, only proved the stabbing and did not prove that the deceased died from the effect of the injuries sustained from the stab wounds. That there was no medical evidence certifying the death of the deceased as resulting from the stabbing.

Also that no evidence was led as to the cause of the death of the deceased. It was submitted that the failure to prove that the stab wound resulted in the death of the deceased entails that a key ingredient of the offence which is that an act of the Appellant resulted in the death of the deceased – had not been established beyond reasonable doubt. On his own part learned counsel for the Respondent submitted that in a criminal trial the prosecution is required to prove its case beyond reasonable doubt and proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.

That it simply means establishing the guilt of the accused person with compelling and conclusive evidence. That is a degree of compulsion which is consistent with a high degree of probability. The Court was referred to Smart v State (2014) 9 NWLR (Pt.1518) 447 and Agbo v The State (2006) 6 NWLR (Pt.977) 545.

It was submitted that in a charge of culpable homicide under Section 221 of the Penal Code as in the instant case, the prosecution is required to prove the following: a) That the person the accused is charged of killing actually died. b) That the deceased died as a result of the act of the accused person. c) That the act of the accused person was intentional and he knew that death or bodily harm was the probable consequence. The Court was referred to Haruna v A.G. Federation (2012) NWLR (Pt.1306) 416 and Nkebisi v State (2010) ALL FWLR (Pt.529) 1410.

The Appellant, it was contended, had confirmed in his confessional statement Exhibit ‘A’ that the deceased died. It was argued that it was the act of the Appellant that caused the death of the deceased as shown by the evidence of five witnesses called by the Respondent and Exhibits A-D1. It was contended that by using a knife to stab the deceased on the chest, the Appellant knew that death would be the probable consequence of his act. It was submitted that a man is presumed to intend the natural consequences of his acts and the test to be applied is that of a reasonable man.

The Court was referred to Gamba v The State (2000) FWLR (Pt.24) 1449. ​It was contended that the need for medical evidence to ascertain the cause of death was not necessary taking into account the circumstances of the death of the deceased. It was clear, it was further argued, that it was the act of the Appellant that caused the death of the deceased. The Court was referred to Azu v State (1993)6 NWLR (Pt.299) 303. Evidence of PW1, it was argued, corroborated the confessional statements of the Appellant Exhibits ‘A’ and ‘B’.

It was contended that the defence of self-defence was not available to the Appellant because, the PW1 said that, the Appellant was the aggressor and there is no evidence to show that the deceased was in possession of anything during the incident. The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden.

If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt. ​Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence.

See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000) 4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1.

By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following: (a) That the death of a human being took place. (b) That such death was caused by the accused person. (c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured.

See Adava v The State (2006) 9 NWLR (pt. 984) 152 and Isah v The State (2017) LPELR 43472. A successful plea of defence of self-defence negatives the existence of an offence. This means that if a person kills another person in defence of any person from unlawful violence or in defence of property, it is excused and it does not amount to manslaughter or culpable homicide not punishable with death. See Section 33(a) of the 1999 Constitution (as amended) andAminu v State (2019) 7 NWLR (Pt.1672) 481.

In the instant case, the Appellant at the earliest opportunity in his statement to the police Exhibit ‘B’ stated that the deceased with others tried to snatch his motorcycle the previous night. In the process they tried to stab him with a cutlass but he managed to escape. He shouted and people came to his help. The following day while riding the motorcycle the same people threw a bench on the road in front of him. He ran into the bench. He fell. The people came and stabbed him with a cutlass and knife. That it was his friend Dauda Mahamood who stabbed the deceased in defence of the Appellant.

That some policemen came. They took him (Appellant) to the police station. Thereafter the policemen took him to the (ATBUTH) hospital in Bauchi for treatment as a result of the injuries he sustained on his head and hand. ​His friend who helped him ran away after the incident. About six years after the Appellant made the above statement, he maintained in Court in his defence that the deceased and others assailed him two consecutive evenings. It was on the second evening that he was struck on the arm with a knife.

On the above evidence, the Court below sought to consider if the defence of self-defence was available to the Appellant and rightly so. But the Court below in my view did not consider the whole evidence available to the Appellant in that respect. Apart from the case of the Appellant that his assailants threw a bench on the road as he approached on the motorcycle leading to him running into it and falling down, the Appellant stated that he was attacked with cutlass and knife by the deceased and the other assailants.

If the Court below had considered fully the defence of the Appellant particularly his first statement to the police, it probably would not have come to the following conclusion: “The action of the accused person in stabbing the deceased with a knife on his chest cannot be described as commensurate to the injuries inflicted on him by throwing a bench in front of his motorcycle.” It is the law that once there are reasonable grounds for an accused person to believe he was in danger the amount of force used by him to preserve his life becomes immaterial.

It is not the law that a person threatened must take to his heels and run like Usain Bolt. All the accused person needs to show is that he did not want to engage in the fight and apprehension of possible death or great violence to his person. If the Court is left in doubt as to whether the accused person was acting in self-defence, he should be acquitted. See Aminu v State (supra) page 493.

The defence of self-defence will only fail if the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self-defence. See Apugo v State (2006)16 NWLR (Pt.1002) 227. PW1 who apparently was an eye witness in his evidence said that the Appellant had a knife and the other person had a cutlass. But the Respondent tendered a cutlass and two knives. There is no evidence how it came about these weapons. ​On the other hand, the Appellant in his statement to police Exhibit ‘B’ named those who attacked him and inflicted the injury on him.

No attempt was made by the prosecution to investigate this. The Appellant in the same statement said he was taken by police to the hospital for the treatment of the injury he sustained. This was not denied by the police. Evidence of Appellant in my view is more credible. No attempt was made to rebut it or show that it was not true. As pointed out earlier, the Appellant showed a scar in Court of the injury inflicted on him by the people who attacked him among them the deceased.

For the Appellant to be attacked two consecutive nights with cutlass and knives particularly when on the second day he was forcefully brought down while riding his motorcycle before being confronted with those weapons and striking him on the arm, the Appellant had reasonable ground for believing that he was in danger.

It did not therefore matter that the deceased was struck on the chest with a knife, according to the Appellant by his friend in defence of the Appellant. ​The prosecution led no scintilla evidence to show that what the Appellant did even if he was the person that struck the deceased was not done in self-defence. The Appellant was therefore entitled to an acquittal. The only issue for determination is resolved in favour of the Appellant and against the Respondent. The appeal is allowed. The conviction and sentence of the Appellant by the Court below are hereby quashed.

The Appellant is acquitted and discharged.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now, the judgment just delivered by my learned brother JAMES SHEHU ABIRIYI, JCA (PJCA). I agree with the reasoning and conclusion reached thereat that the appeal is meritorious and should be allowed. I also allow the appeal and abide by the orders made therein.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: Having read in advance of the lead judgment delivered by James Shehu Abiriyi, JCA, I am fully in agreement with his erudite judgment which has taken into consideration the crucial facts and circumstances surrounding this case.

These pertinent facts were overlooked by the trial Judge who wrongly convicted the Appellant for the offence of culpable homicide contrary to Section 221 of the Penal Code. ​I am not left in doubt that the Appellant ought to have been availed of the defence of self defence in the light of the uncontroverted and credible evidence elicited by the Appellant based on the evidence of the injury sustained by him as well as his statement, Exhibit B wherein he gave an account of how he was attacked and the inflicted injury upon him.

The defence of self defence is open only to an accused who is able to prove that he was a victim of an unprovoked assault causing him reasonable apprehension of death or grievous harm. He is entitled to use force to defend himself as he believes on reasonable grounds to be necessary to protect himself from danger, and he is entitled to so even though such force may cause death or grievous harm. See R v. Dummeni (1955) 13 WACA 75 see also Ilu vs. State 2014 LPELR-24610 CA. Appellant had reasonable apprehension of danger.

He was waylaid whist on his motorcycle when a bench was thrown on the road, this led to his falling off the motorcycle followed by being attacked with cutlass and knife by the assailants, the deceased inclusive. ​The following day he was dragged down from the same motorcycle and threatened by the use of weapons, these incidents to my mind portends of danger, the fact that he struck the deceased on the chest in self defence cannot be ruled out. ​It is for the foregoing reasons and the fuller decision of his lordship that I am inclined to associate myself with the lead judgment.

Accordingly, the judgment of the lower Court is dismissed and the conviction of the Appellant is set aside.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment of the High Court of Edo State sitting at Benin City delivered in Suit No. B/36/2012 by A. Edodo-Eruaga, J. on 14th February, 2018, wherein the trial Court entered judgment in favour of the Appellant.

The Appellant at the trial Court by an amended Writ of Summons and statement of claim filed on 13th March, 2014, prayed for the following order: (a) “A declaration that the Claimant is entitled to customary right of occupancy to all that piece or parcel of land situate at Ora Village Area, Ovia North East Local Government Area of Edo State, Benin City verged red in litigation survey plan No.

SEA/ED/D./172A/2017 and prepared by Surveyor Henry Ediagbonya B.SC MBA herewith containing an area of 2987.625 square meters (b) The sum of N50,000.00 only being general damages for trespass in that the defendants, their servants, privies and agents at various dates beginning from March, 2011 when they broke and entered the claimant’s said land and bulldozed large area of the claimant’s economic and arable crops without the consent and authority of the claimant. (c) An order of perpetual injunction restraining the defendants, their servants, privies and agents, from further trespassing unto the land as howsoever doing or continuing to do anything inconsistent with the vested right of the claimant over the land in dispute.” ​The brief fact of the case is that the Respondent who was the Claimant at the trial Court alleged that he is the owner of the piece of land measuring an area of 2987.625 square metres allegedly situate at Ora Village in Ovia North East Local Government Area of Edo State which land he claimed to have inherited from his late father, Pa Jonah Airhumwinde Omoregie who acquired same in 1920 through customary grant from the Odionwere and Elders of Ora Community.

The Respondent claimed that this land in dispute is part of the larger parcel of land acquired by his late father. He also alleged that the Odionwere and Elders also planted an Ikhinmwin tree on the land after the land was granted to his father to symbolize his ownership over the land and his father farmed on it from 1920 till 1993 when he passed on. After the death of his father, the Respondent then appointed Mr. Daniel as a caretaker who also farmed on the land.

His father died in September 1993 and after his burial the land in dispute was then shared to him by his late father’s family members led by the Okaegbe, Mr. Samuel Osarenkhoe. He took immediate possession of the land by allowing the said Mr. Daniel, his caretaker to continue farming on the land and that sometime in 2011 he was informed by Mr. Daniel (his caretaker) that the Appellants have trespassed on the said land.

The Appellants on the other hand alleged that the land in dispute belongs to Iyowa Community and that it is situate at Iyowa Community as was allegedly confirmed by the decision of the Oba of Benin, Omo’N’Oba N’edo Ukuakpolokpolo in the letter dated sometime in 2010 during a boundary dispute between Iyowa and Ora Communities.

The Appellants further alleged that it was Iyowa Community through her Enogie late Obayagbona Aigbekaen that gave the land to the Respondent’s father for farming and not as grant. ​The Appellants further alleged that in 2011, the land in dispute was allocated to the 2nd to 5th Respondents by Iyowa Community through its Elders in Council and they took possession of the land by erecting a wall fence on the land. At the end of the trial, the Court gave judgment in favour of the Respondent.

Dissatisfied with the judgment of the Court, the Appellants approached this Court vide an amended Notice of Appeal filed on 2nd April 2019. Upon the exchange of briefs as required by the rules of this Court, the appeal was heard on 1st March, 2022. E. O. Afolabi Esq., with Ehinon Okoh Esq., and F. M. O. Ogbeide Esq., appeared for the Appellants, while B. O. Ojumah Esq., appeared with C. C. Okaaleke Esq., for the Respondent. E. O.

Afolabi Esq., for the Appellants adopted and relied on the Appellants’ brief of argument and the reply brief filed on 2nd April 2019 and 11th October 2021 but deemed properly filed and served on 1st July, 2021 and 13th October 2021 respectively in urging the Court to allow the appeal. The Appellants in the said brief of argument donated 3 issues for determination to wit: 1. “Whether the trial Court was right in entering judgment in favour of the Respondent when the customary grant upon which he based his title to the land in dispute was not proved as required by law. 2.

Whether the act of possession by Respondent’s late father on the disputed land is of any positive effect in the face of a defective title. 3. Whether the Respondent has established the identity and location of the land in dispute warranting the Court to enter judgment in his favour.” B. O. Ojumah Esq., for the Respondent adopted and relied on the Respondent’s Brief of argument filed on 11th October 2021 but deemed properly filed and served on 13th October, 2021; in urging the Court to dismiss the appeal. The Respondent’s Brief of Argument formulated 2 issues for determination as follows: 1.

“Whether the Respondent proved his title to the land in dispute before the trial Court to entitle him to judgment. 2. Whether the Respondent correctly identified the land in dispute and led evidence to situate the land in Ora Community as held by the learned trial Judge.” Upon careful examination of the three issues raised by the Appellants, the 2 issues distilled by the Respondent; and with the Grounds of Appeal; adopting the 2 issues formulated by the Respondent will substantially determine the appeal. I shall therefore determine the appeal on the referred 2 issues.

However, I shall resolve the said issues 1 and 2 together as they both interwove. SUBMISSIONS ON ISSUE 1 Whether the Respondent proved his title to the land in dispute before the trial Court to entitle him to judgment. E. O. Afolabi Esq., for the Appellants on this issue contended that the onus is on the Claimant to prove his case and not to rely on any weakness or failure on the part of the defendant. The onus cannot shift until he has proved his claim satisfactorily as it is the duty of he who asserts the existence of a particular fact to prove same.

He relied on METIBAIYE v NARELLI INTERNATIONAL LTD. (2009) 16 NWLR (PT. 1167) 326 AT 352; KOPEK CONSTRUCTION LTD V. EKISOLA (2010) ALL FWLR (PT519) 1035 AT 1061, PARAS B-C; AWANYA v ONYEJEKWE (1975) 3 SC 161; ORONSAYE v OSULA (1976) 6 SC 21; ANDNKANU v. ONUM (1977) 5 SC; AGATA v. OKUSIN (2010) 10 NWLR (PT. 1202) 412 at 434; AGBALLAH v.

CHIME (2009) NWLR (Pt 1122) 373 at 327. ​The learned counsel submitted that the law is that in a situation where a party relies on inheritance or grant based on traditional evidence, the names of the persons who originally owned the land who made such grant and how the land was founded and devolved on them cannot be dispensed with and it is incumbent on the claiming party to provide this necessary information.

He relied on BELLO v SANDA (2012) ALL FWLR 639 462 AT 478-479; IROAGBARA v UFOMADU (2001) FWLR (PT 61) 1753, (2009) 11 NWLR (Pt.153) 587; DIM v ENEMUO (2009) 10 NWLR (pt.1140) 353; MOGAJI v CADBURY (NIG) LTD (1985) 2 NWLR (PT 7) 393; DAGACI OF DERE v DAGACI OF EBWA (2006) ALL FWLR (PT.306) 786. He submitted that the Respondent’s failure to tell the Court the names of the Odionwere and Elders who approved his father’s application and allotted the land to him or any member of Ora Community who witnessed the same is fatal to his case.

He relied on ANAEZE v ANYASO (1993) 5 NWLR (PT.29) P1; UNIVERSITY PRESS LTD v I.K MARTINS (2000) 4 NWLR (PT.654) P. 584 E. O. Afolabi Esq., further submitted that if the title of his vendor or grantor is defective and non-existent like the instant one, then obviously he will have no valid title to pass to anybody. He cited NWADIOGBU v NNADOZIE (2001) FWLR (PT61) 1625 (2001) 12 NWLR (PT.727) 315; AGAKA v AYIURA (2012) ALL FWLR (PT.608) 899 -945; ONUOHA v. ADUBUEZE (2002) 2 (PT.750) 72; POLO v. OJOR (2003) 3 NWLR (PT 07) 344; EZINWA v. AGU (2003) 33; ADESANYA v.

ADERONMU (2000) FWLR (PT.15) 2492; FAYEMI v. AWE (2010) ALL FWLR (PT.528) 862.

The learned counsel further contended that in a case for declaration of title to land where title is based on traditional history such as the instant one, the claimant needs to adduce cogent and conclusive evidence on traditional history. He relied on OYEKAN v. OYEWALE (2012) ALL FWLR (PT. 623) 1991; GBADAMOSI v. TOLANI (2011) 5 NWLR (PT 1240) 352; SANUSI v OBAFUNWA (2006) 28; FAYEMI v AWE (SUPRA) AT PAGE 882, PARAS D-E; IRIRI v. ERHURHOBARA (1991) 2 NWLR (PT.173) 252; DIKE v OKOLOEDO (1999) 10 NWLR (PT 628) 359.

He submitted that evidence of the 6th Appellant that the land in dispute was given to Respondent’s father for farming by Obanyagbona Aigbekaen of Iyowa Community is unchallenged and unchallenged evidence is deemed admitted. He cited N.S.I.T.F.M.B. v. KLIFCO (NIG) LTD 2010 186 LRCN 1 AT 19A-F; OMOREGBE v. LAWANI (1980) 3-4 SC 108, BELLO v. EWEKA (1981) 1 SC; OFORLETE v. STATE (2000) 12 NWLR (Pt.681) 415; MATANMI & ORS v. DADA & ANOR ​(2013) 221 (PT 2) 223 AT 243, KP; WINTAI OFEI vs DANGUAH (1961) 3 ALL ER 596.

It is also the contention of learned counsel that mere farming on a piece of land cannot be seen as an act of ownership. He can best be described as a customary tenant. He cited AYORINDE v. SOGUNRO (2012)at ratio 10; NKWOCHA v. OFURUM (2002) 5 NWLR (PT. 761)) 506; OYEKAN v OYEWALE (2012) ALL FWLR pt.623 1991 AT 2009, PARAS D-E; MOGAJI v. CADBURY LTD AT 431432; OYADARE v KEJI (2005) ALL FWLR pt.247 1583.

Furthermore, he contended that though act of long possession is one of the ways of proving ownership of land, the Respondent however did not rely on acts of long possession as his root of title to the land, rather, he relied on grant. Therefore, the trial Court misconstrued itself when he adjudged the Respondent’s father’s act of possession on the land as ownership right and entered judgment on that ground. He argued that for one to talk of acts of ownership, he must first establish root of title. He relied on BELLO v. SANDA (2012) ALL FWLR pt.636 481, PARAS B-E; OBIOHA v.

DURU (1994) 8 NWLR (PT.365) 631; NDUKUBA v. IZUNDU (2006) ALL FWLR pt.349 1740. He urged the Court to resolve this issue in favour of the Appellants and allow this appeal. B. O. Ojumah Esq., for the Respondent in response to the issue submitted that there are five methods to prove title and a Claimant need not prove all the five methods of proving ownership of land to succeed in declaration of title to land, rather, proving one method suffices. He relied on Idundun & Anor. v. Okumagba (1976) 1 S.C.J.L. 826 at 838 to 840; Irolo v. Uka (2002) 14 WLR (pt. 786) 203.

The learned counsel submitted that the Respondent herein proved his title to the land through the Evidence of traditional history by demonstrating how his father acquired the land and how he in turn inherited same from his late father B. O.

Ojumah Esq., further contended that he has proved title by establishing exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the owner; Act of long possession and enjoyment of the adjacent lands. ​It is the contention of learned counsel that the planting of Ikhinwin tree on the land in their custom depicts ownership. He submitted that custom and tradition does not require proof as Courts take judicial notice of them. He cited Section 17 of the Evidence Act 2011; Uwadiae V.

Aburime (1996) LRCN at 2419; Ogunde v. Abdusalam – 107 at 132 lines 30-45 B. O. Ojumah Esq., contended that the parties did not join issue as to the methods of land acquisition in Benin as at 1920 and therefore did not join issue on who is the Odionwere that granted the land. And as such, both the parties as well as the Court are bound by the pleadings, the Appellant cannot raise an issue on the same. He relied on Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69; Ogunde Vs. Abdusalam (supra) page 135.

The learned counsel contended that in a proof of title by traditional history or evidence, the party relying on such method does not need to personally witness the transaction as it consists of series of events passed from one generation to another. Therefore, the Respondent herein need not to have witnessed when the land was allocated to his father before his testimony would stand. He cited Arowolo v. Olowookere (2011) 18 NWLR (Part 1278) 280 at 305, paras A-C; Alade v. Awo supra at pages 762 to 763; Abinabina Vs. Enyimad reported in Vol. XII WACA 171, at page 172. B. O.

Ojumah Esq., submitted that in a claim for declaration for title to land, a Judge who is confronted with two opposing accounts of how the disputed land was acquired must consider both accounts and decide on the balance of probabilities which of them he will accept. He submitted that the trial Court was right when it preferred the account of the Respondent which stated with specifics when the land was acquired as opposed to that of the Appellants which merely said that it was over 50 years since the Respondent’s father came into possession of the land without specifics. He relied on Omoregbe v.

Edo (1971)S.C.J.L 347 at 353 paras D. He finally submitted that the Respondent also proved his case by act of long possession and peaceful enjoyment of the land, thus, shifting the onus to the Appellants to prove the contrary. He relied on Oyadare V. Keji (2005) 7 NWLR (Part 925) 571 at P. 590, paras E-F; Section 145 of the Evidence Act, 2011; Omoko v. State (2014) 31 96 at 113, Yusuf v. Obasanjo (2005) 18 NWLR (pt. 956) 96 at 167 paras B; Dagash v. Bulama (2004) 14 WLR (pt. 892) 144 at 250 paras D-E The learned counsel urged the Court to resolve this issue in favour of the Respondent.

SUBMISSIONS ON ISSUE 2 Whether the Respondent correctly identified the land in dispute and led evidence to situate the land in Ora Community as held by the learned trial judge. E. O. Afolabi Esq., for the Appellant on this issue submitted that a party laying claim to a piece of land must prove with certainty that his description of the land with respect to its location and boundaries are unassailable.

Mere mentioning of the area is not enough, rather, the description and extent of the boundaries must be proved with exactitude and the onus of proving the same is on the Claimant who is seeking a declaration. He relied on ATANDA v. ILIASU (2012) 6 NWLR PT. 1350 529 AT 549, PARAS F-G; Wahcibi Maderi v. Chief Oyemyi Alade (1987) 4 SCNJ 102 (1987) 2 NWLR (pt.55) 101; IJAMA OTIKA ODICHE v. OGAH CHIBOGWU (1994) 7-8 SCNJ 317 AT 324-325 (1994) 7 NWLR (pt.354) 78; EKPEMUPOLO & ORS v. EDREMODA & ORS (2009) 3 M.J.S.C 63 AT 82; OKEDARE V. ADEBARA (1994) 6 NWLR PT.340 157; AGBONIFO v.

AIWERIOBA (1988) 1 NWLR PT.70 325; ONWUKA V EDIALA (1989) 1 NWLR (PT.96) 182; KWADZO v ADJEI (1944) WACA 274; ARABA v. ASANLU (1980) 5-7 SC 78. The learned counsel submitted that the decision of the trial Court is erroneous as the Respondent did not prove with certainty that the land is in Ora Community since the litigation survey is not conclusive proof of the location of a land without credible evidence to prove the facts contained in the said survey document as the said surveyor merely reflected in the litigation survey plan exactly as he was told to. He relied on AYUYA v.

YONRIN (2011) ALL FWLR (PT583) 842 AT 1864 PARA F. He further contended that the agreement between Iyowa Community and the 2nd to 5th Appellants admitted in evidence which shows that the land in dispute is situate at Iyowa Community was not challenged nor contradicted and should be accepted as true and correct. He urged this Court to resolve the issue in favour of the Appellants and set aside the judgment of the trial Court. ​B. O.

Ojumah Esq., in response to this issue contended that since the Oba ordered that a setback of 200 feet be given to Aruogiora Shrine and that Ora should not go to Iyowa to serve the shrine, it follows therefore that the shrine is on Ora land. Thus, since the Aruogiora shrine is beside the land in dispute alongside other land that belongs to Ora people, it is proof that the land in dispute is in Ora land. He submitted that the findings of the trial Court is not perverse and urged this Court not to interfere with the findings of the trial Court. He relied on Ubn Plc V.

Chimaeze (2006) LPELR 11747(CA). B. O. Ojumah Esq., further submitted that one of the ways to establish the identity of land in a declaration of title to land, is to tender a Survey Plan of the land in dispute or the litigation survey plan as the Respondent herein did. He also argued that the Appellants did not deny the fact as per the boundary men who are of Ora extraction; neither did they join issue on the said boundary men with the Respondent and what is not denied need no further proof. He cited Insurance Brokers of Nigeria V. ATMN (1996) 8 WLR (Pt 466) 316; Aiyeola V.

Pedro (2014) LPELR-22915 (SC). ​The learned counsel claimed that the burden is on the party claiming title to establish the identity of the land by specific and unequivocal evidence as to its boundaries. This he argued may be done by oral description of the land sufficient to make it ascertainable or by filing a survey plan. He relied on Tanko v. Echendu (2010) 18 NWLR (pt. 1224) 253 S.C; Aremu v. Adetoro (2007) 16 NWLR (Pt 1060) 244; (2007) 7 SC (Pt. II) 1; Odesanya vs. Ewedemi (1962) 1 All NLR 320; Awere v. Lasoju (1975) NMLR 100; Udofia vs Afia (1940) 6 WACA 24.

He submitted that the Respondent herein discharged this burden by tendering before the trial Court an accurate Survey Plan of the land in dispute. He cited Adesanya v. Aderonmu & 3 Ors, (2000) 79 LRCN 2149 at 2173. He urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal with substantial costs. RESOLUTION OF ISSUES 1 AND 2 On whether the Respondent identified and proved his title to the disputed land at the trial Court so as to be entitled to judgment.

The position of the law as settled in plethora of authorities that the burden of proof in civil matters is generally on the claimant is well firmed. See: ADAMU V. NIGERIAN AIRFORCE & ANOR (2022) (SC). As commonly put; he who asserts must prove. However, the burden of proof in civil matters unlike in criminal proceedings is not static, it lies on that person who would fail if no evidence was given on either side. This burden of proof required is on balance of probability or on preponderance of evidence. See: INYANG V.

CCECC (2020) LPELR-49694 (CA); SECTION 132, 133 AND 136 OF THE EVIDENCE ACT 2011. Therefore, the onus of proof herein lies on the Claimant who seeks a declaration of title to the disputed land to establish with certainty and precision and without inconsistency the area of land to which his claim relates and how he acquired his title. The point clearly emphasized is that a declaration of title to land can only be granted in respect of land which has definite, precise and accurate boundaries.

Thus, for the Claimant to succeed in his claim for the land, he must prove the exact location of the land and how he acquired his title. See: DADA V. DOSUNMU (2006) LPELR-909(SC); AMU & ANOR V. OKEAYA-INNEH & ANOR (2021) LPELR-55660 (CA); IBRAHIM & ANOR V. BORNO STATE GOVT & ANOR (2021) LPELR-56575(CA); TOMU V. MUAZU & ORS (2019) LPELR-47930(CA).

This is the foremost and fundamental duty of a Claimant, because where a Claimant fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary he produces at the trial and even though it is cogent and credible cannot in law, ground a claim of an interest in the land in his favor.

Hence, before a Court before trying a land case goes into the facts of the case, it must firstly satisfy itself with the certainty of the land in dispute and its boundaries. ​Herein, the Respondent in proof of the location of the land at the trial Court led evidence to the effect that the disputed land is situate at Ora and is surrounded on two sides by the land of Enehizena of Ora, an existing road and the land of Amayo of Ora on the other side. He also went further to tender a litigation survey plan which situates the land in Ora Community likewise the adjacent parcels of land.

It is noteworthy that the Appellants at the trial Court did not join issues with the Respondent on the fact that the adjacent parcels of land to the land in dispute all belong to the people of Ora extract. Unexpectedly, no person of Iyowa extract owns any of the adjoining land, yet, the Appellants argued that the disputed land belongs to Iyowa Community. It is startling how one could have given out his land to another for the purpose of farming and yet, there is no evidence of the lessee paying any form of tribute to his overlord.

Aso pertinent to note is the fact that the Respondent’s father undisputedly had exclusive and undisturbed possession from 1920 till sometime 2011. Consequent to the above analysis, I do not agree with the Appellants that the land in dispute is situate in Iyowa Community. I agree with the findings of the trial Court that the Respondent through traditional history, adjacent parcels of land and litigation survey plan has proved on balance of probability that the land in dispute is situate in Ora Community. I so hold.

On whether the Respondent proved his title to the land in dispute; the position of the law is settled beyond argument on the five methods to prove title to land. The Supreme Court enunciated this principle in the case of Idundun V.

Okumagba (1976) 9-10 SC. 227; where it stated thus; “There are five methods to prove title to land to wit; (a) by traditional evidence; (b) by production of documents of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute’.

It should be noted however, that proof of any of the above mentioned five methods is enough to establish title to land. If a Claimant pleads and/or relies on more than one method to prove his title, he merely does so ex abundante cautela. See: IFEDIORA & ORS V. OKAFOR & ORS (2019) LPELR-49518 (SC).

Clearly, it is when a person is relying on traditional history among the five methods of proof of title to land that he has the obligation to plead and prove root of title. See: ELIJAH & ORS V. ADEKANBI (2015) LPELR-41789(CA); BOLANTA & ANOR V. TOSIN NOVEL FIRMS LTD 2020 (CA); IBISU V. KINGHAM & ANOR (2021) LPELR-56306(CA). The proof of root of title must be proved through cogent and credible evidence. ​The Apex Court summarized it in the case of F.I.P.D.C Nig Ltd V.

E.A.S Ltd (2006) 6 NWLR Pt. 975 P.1 AT 28 where it stated that in an action where any of the reliefs sought by the parties are declaratory or involve title to disputed parcel of land, the Court is to consider 2 main issues which are thus: 1. Whether the claimant adduced credible, cogent and reliable evidence adducing the identity/boundaries of the disputed land? 2.

Whether the claimant adduced credible and cogent evidence establishing of title through any of the 5 ways recognized in proving title to land generally as reproduced above. ​I had earlier on in this judgment resolved that the Respondent adduced credible, cogent and reliable evidence as to the identity of the land through his oral testimony, the adjacent parcels of land and the litigation survey plan. Now, the question is whether the Respondent who was the Claimant at the trial Court proved his title through any of the five methods enunciated above.

The Respondent at the trial Court made effort to prove his title to the land in dispute by traditional history and long possession. In proof of this title through traditional means, he gave a detailed description of the land, how his father acquired it in 1920 from the Odionwere of Ora who was the representative of the Oba, farmed on the land from 1920 to 1993 when he died and how he inherited the same from his father. In addition to this oral evidence, he tendered a litigation survey plan.

This evidence was not debunked by the Respondent who claimed that for that length of time, the Respondent’s father was merely given the land for farming even when there is no evidence of rent or any form of tribute. The learned trial Judge in my view was right to have believed the evidence of the Respondent and found that on the balance of probability, the same outweighed the evidence of the Appellants on the title of the land in dispute.

I therefore agree with the trial Court that the Respondent established his title to the disputed land with credible and cogent evidence of traditional history. ​On the argument of the Appellant that the trial Court erred in law when it held that the Respondent proved his title through long possession when in fact the Respondent did not rely on long possession in proving his title; The position of the law is settled that a Claimant may rely on both traditional history and acts of ownership in proof of his title. Where he fails on the former, he may well succeed on the latter.

See: BALOGUN & ORS V. AKANJI & ORS (2005) LPELR-722(SC). I see from the record of proceedings, particularly at page 92 of the record of proceedings where the Respondent averred in his amended statement of claim that his father had been in actual and effective undisturbed possession of the land since 1920 to 1993 when he died and he (the Respondent) appointed Mr. Daniel as his caretaker to farm on the land and has been on the land since that 1993 to 2011.

Therefore, I fail to agree with the learned counsel for the Appellants that the Respondent did not rely on long possession in prove of his title. I resolve issues 1 and 2 in favour of the Respondent. ​In conclusion, I find that the Respondent has proved his title to the land through both traditional history and long exclusive possession. I find no merit in this appeal and the same is hereby dismissed. The judgment of the High Court of Edo State in Suit No. B/36/2012, delivered by Edodo-Eruaga, J. on 14th February, 2016 is hereby affirmed. I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. I am in complete agreement with his Lordship that the appeal is devoid of merit and deserves dismissal. Whereas there is satisfactory evidence which the trial Court believed that the Respondent proved his title to the land through both traditional history and acts of long possession which Appellants conceded the Respondent who claimed that they gave the land on loan to the Respondent, failed to adduce cogent and credible evidence in proof of same.

Where a party alleges in a land suit that the other party is a customary tenant, he must plead and prove the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleadings and in the evidence adduced to establish same. See the case of Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 313 at pages 378-379 paras H-B, Oduaran v. Asarah (1972) 5 SC 272, Dada v. Bankole (2008) 5 NWLR (Pt.1079) 26. ​It is for this reason, and the detailed reasoning and conclusion in the lead judgment that I also dismiss this appeal.

I abide by the consequential orders made in the lead judgment. ADEMOLA SAMUEL BOLA, J.C.A.: I had the privilege of reading in advance, the draft judgment read by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with her reasoning and conclusion as elucidated in the decision. The evidence adduced by the Respondent at the lower Court reveals patently that he depended in the main on long possession as embedded in the evidence of traditional history adduced at the trial Court. The Respondent testified that his father had been in possession since 1920 till 1993.

When he died and he (Respondent) appointed one Mr. Daniel as his caretaker to farm on the land from then till 2011. This is evidence of reliance on long possession to prove title. By reason of this, it is held that Respondent proved his case at the lower Court. ​Arising from the foregoing, this appeal lacks merit. It is accordingly dismissed. I abide by the consequential orders made by my Lord Uchechukwu Onyemenam, JCA.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the National Industrial Court, Abuja, delivered on May 18th, 2020 by Hon. Justice O. O. Oyewunmi in Suit No. NICN/ABJ/218/2018 wherein judgment was entered in favour of the 1st Respondent who was the Claimant at the Court below against the Appellant, the 2nd Defendant at the Court below. The case of the 1st Respondent against the Appellant and the 2nd Respondent at the Court below was for the following reliefs: “a.

A DECLARATION that the computation of the claimant’s lump sum/benefits by the defendant done on the basis (sic) 25% of the claimant’s total Retirement Savings domiciled with the 1st defendant is in bad faith, wrong, defective, ran foul of the law, not known to law, offends the principle of justice, fair dealing and good conscience therefore null and void of (sic) and no effect whatsoever. b.

AN ORDER of this Honourable Court directing the defendants to pay the claimant the amount of Fifteen Million, Eight Hundred and Ninety – Seven Thousand, Six Hundred and Eighty Naira, One Hundred and Seventy-Five Kobo (N15,897,680,175) representing 75% of the claimant’s total Retirement Saving Account domiciled with the 1st defendant. c. AN ORDER of this Honourable Court directing the defendants to part to the claimant 75% of the claimant’s total retirement savings at the time of the judgment from the claimant (sic) retirement savings account domiciled with the 1st defendant d.

Interest on the judgment sum at the rate of 10%. e. Damages in the sum of N10,000,000 (Ten Million Naira) for non-payment of the correct lump sum to the claimant, the claimant having lost a life changing business opportunities and having suffered financial embarrassment, inconvenience, pains and economic hardship. f.

The sum of One Hundred Thousand Naira (N100,000) as the cost of the suit.” ​ As stated earlier, the judgment was against the Appellant and being aggrieved thereby, approached this Court with its Notice and Five (5) Grounds of Appeal as amended dated September 22nd, 2021, filed September 24th, 2021 and deemed properly filed and served on November 29th, 2021.

The Appellant seeks an order allowing the appeal setting aside the judgment of the Court below except the part that refused the claims for damages, general and exemplary and the 10% post-judgment interest on the judgment sum against the Appellant. The brief gist of facts that resulted in the instant appeal is, according to the Appellant, that the 1st Respondent a retiree under the Contributory Pension Scheme complained to the Dispute Resolution procedure of the Appellant being dissatisfied with the payment of lump sum pension by the 2nd Respondent (the 1st Defendant at the Court below).

Without completing the process, he went before the National Industrial Court on July 29th, 2019 against both the Appellant and the 2nd Respondent. According to the 1st Respondent, when in May, 2018 after retirement on December 24th, 2017 from Public Service at the age of 60 years, the 1st Respondent sought lump sum payment of his benefit, from his Retirement Savings Account with N21,196,906.90, the 2nd Respondent proposed to pay N5,512,593.14 as 25% of the total savings and a sum of N132,587.69 as monthly programmed withdrawal.

Not satisfied with the proposed pattern of payment, after many attempts to resolve the issue which went nowhere he instated an action and sought the prayers afore stated. The Court found in his favour and granted most part of his reliefs. Parties in compliance with the rules of this Court filed and exchanged their briefs. The Appellant’s dated September 22nd, 2021, filed September 24th, 2021, deemed November 29th, 2021 as properly filed and served and settled by J. U. K. Igwe SAN, who urged at the hearing of the appeal that it be allowed.

The 1st Respondent’s dated November 2nd, 2021, filed November 3rd, 2021 and deemed as properly filed and served on November 29th, 2021 and was settled by Maroof Giwa Esq., the 2nd Respondent failed to file any brief of argument. The following issues were submitted by the parties for determination: APPELLANT’S FIVE ISSUES: “1.

Whether the learned trial Judge was right in assuming jurisdiction and upholding the Claimant’s principal declaratory relief number A when the relief contained in paragraph 32 (a) of the amended statement of facts as sought by the Claimant was incompetent and ought to have been struck out (Ground 1) 2. Whether the learned trial Judge was right in suo motu awarding 50 percent lump sum pension to the Claimant without inviting the parties to address him on the propriety or otherwise of the said award (Ground 2). 3.

Whether the Claimant discharged the burden of proof placed upon him and entitled to the reliefs granted to him by the learned trial Judge (Ground 3). 4. Whether the learned trial Judge breached the Appellant’s right to fair hearing and breached his statutory duty by failing to determine the fundamental jurisdictional issue of non-exhaustion of administrative remedies raised and argued before him (Ground 4) 5.

Whether the Claimant’s action was initiated by the due processes of law through exhaustion of remedies and fulfilment of the condition precedent to the exercise of jurisdiction by the National Industrial Court (Ground 5) RESPONDENT’S SINGULAR ISSUE “1. Whether the so-called Guiding Computation Template, a subordinate rule allegedly used by the Appellant and 2nd Respondent to limit the lump sum of the 1st Respondent (claimant) to 25% is not at variance with the 1999 Constitution of the Federal Republic Nigeria, Pension Reform Act, 2014 and the Regulation (Ground 2).

Carefully going through the issues submitted, I shall adopt for the determination of this appeal, the issues submitted by the Appellant, even though there is repetition of issues. SUBMISSIONS ON BEHALF OF PARTIES APPELLANT’S ARGUMENT The Appellant submitted that the 1st Respondent failed to complete the dispute resolution procedure prescribed under the relevant law and commenced a suit at the Court below therefore, the Court was wrong to have assumed jurisdiction even when the lapse was raised by the Appellant.

He referred to Section 106(1) (2), (3) and Section 107 (1), (2) and (3) of the Pension Reform Act. That the Court shut it out and violated its fundamental right to fair hearing and cited in support the case of ALL PROGRESSIVE CONGRESS (APC) V. NDUUL & 2 ORS 2018 2 NWLR PT. 1602 1.

Further argued that there was no cause of action to warrant the allegations and assertions of the 1st Respondent and the reliefs sought were consequently premature and in support cited the case of IKECHUKWU V … The learned Counsel for the Appellant contended that the pleadings of the 1st Respondent lacked clarity and was not precise, offended Order 30 Rule 3 and 4 of the Rules of the Court below as it failed to specifically state the exact particulars of the wrong done by the Appellant and the 2nd Respondent and should be struck out.

He submitted that by Section 99 (1) of the Pension Reform Act 2014, where indeed there is a contravention of the Act as the 1st Respondent claimed against the Appellant an offence was committed and it is a must that such offence or wrongful act be known and clear to the Appellant. In support cited the case of ANYANWU & 5 ORS V. UZOWUAKA & 13 ORS 2009 6-7 SC PT. II 44, BELGORE & 2 ORS V. AHMED & 3 ORS 2013 8 NWLR PT. 1353 60 and PDP V. INEC 2012 7 NWLR PT. 1300 538. That the Court has no jurisdiction over vague and speculative claims.

He urged that Section 15 of the Rules of this Court be applied to strike out the declaratory reliefs and cited the case of ODEOLO V. OGBUEGBUEBEGO 2015 13 NWLR PT. 1476 229 and AWONIYI & 2 ORS V. THE REGISTERED TRUSTEE OF THE ROSICRUCIAN ORDER (AMORC) 200 6 SC PT. 1103. He submitted that the fundamental right of the Appellant was breached when the Court awarded 50% lump sum payment without addresses from the parties on the issue, as the 1st Respondent never prayed for it.

That the claim for 75% by the 1st Respondent was inconsistent with the law and the Regulations, Guidelines and approved template. That the award of 50% was without evidence before the Court and should be rejected. In support, he cited the cases OGUNDELE V, AGIRI 2009 12 SC PT. 1 135 and NIGERIA NATIONAL PETROLEUM CORPORATION & ANOR V. ORHIOWASELE & 2 ORS 2013 4-5 SC PT. II 1. The 1st Respondent did not establish his claim as he ought especially for declaratory prayers he argued and cited in support the case of OGAH V. IKPEAZU & 3 ORS and OGAH V. PDP & 4 ORS 2017 17 NWLR PT. 4594.

There is nothing before the Court to show that it was the Appellant computed any lump sum. Further that the finding of unlawfulness, bad faith, defectiveness, unfair dealings and bad conscience was unsupported by evidence as should be and cited the cases of ADEGBUYI V. APC & 2 ORS 2014 12 SC PT. 1 and NBC PLC V. UBANI 2013 SC 95 in support. ​ He argued that Section 1 (c) and (d) of the Pension Reform Act was inserted to ensure that every Pensioner receives his retirement benefit and are catered for during old age.

Therefore, contributory pension funds are not exposed to business ventures unregulated by the Commission and therefore the programmed withdrawal. That all Pensioners are involved and the Appellant not singled out. That the computation of 75% was a wrong presumption on the part of the Court and it had no powers to do so outside the laws and regulation.

In conclusion, he urged that the non-exhaustion of the statutory prescribed administrative steps by the 1st Respondent was fatal to his case, the jurisdiction of the Court was prematurely invoked and therefore the entire proceedings ought to be set aside. 1ST RESPONDENT’S ARGUMENT It was submitted on behalf of the 1st Respondent that the 1999 Constitution as amended, Pension Reform Act 2014 and the Regulation for the Administration of Retirement and Terminal Benefits (the Regulations) take priority in application against any computed Templates, guidelines benchmark circulars and subordinate subsidiary legislations in respect of pension administration. ​ The 1st Respondent asserted that there were multiple entreaties of the Appellant which yielded no fruit and that was why he instituted action against the Appellant and the 2nd Respondent at the Court below.

He submitted that the 1st Respondent satisfied the basic rules on pleadings, as the issues are clear not vague and in summary form of material facts. And that the pleadings are in tandem with the reliefs sought. He argued that the conduct of the Appellant and the 2nd Respondent amounted to forceful takeover of the property of the 1st Respondent in violation of Section 44 (1) of the 1999 Constitution as amended. That to peg the available lump sum for payment to 25% was unlawful and in bad faith and in support cited the case of SHODEINDE & ORS V.

REGISTERED TRUSTEE OF AHMADIYYA 1983 LPELR-3064 SC 53.

On the argument that the 1st Respondent should have gone to arbitration other than litigation, the 1st Respondent argued that arbitration clause does not necessarily oust the jurisdiction of the Court, that the right to go for arbitration is personal and can be waived by either of the parties and referred to Section 6 (b) of the 1999 Constitution. ​ That there is a difference between mandatory retirement as in the case of the 1st Respondent and other category of retirements and for the category the 1st Respondent falls within, it is as stated in Section 7(1) (a-c) of the PRA.

That withdrawal of lump sum is mandatory as of right in the case of the 1st Respondent and not limited to a particular percentage and thereafter the programmed monthly or periodic withdrawal is determined from the sum left. Further that the lump sum amount is not determined by the Appellant, 2nd Respondent or any guideline or on the basis of life expectancy.

That to control the amount to be paid as lump sum will breach Sections 39 and 173 of the 1999 Constitution. 25% lump sum payment he argued does not in any way apply to the 1st Respondent along with the provisions of clauses 5.1.1 and 5.1.5 of the Regulation. He submitted that subordinate legislation, the computation template which was not tendered in evidence cannot go beyond the substantive legislation, the Pension Reform Act and cited in support the cases of MOBIL PRODUCING NIG. UNLIMITED V. OKON JOHNSON & 17 ORS SC 33/2010 and PRINCE ADEMOLU ODENEYE V. PRINCE DAVID OLU EFUNUGA 1990 11-22 SC.

The Appellant abandoned the issue of the template as no evidence was presented in that regard and cited in support the cases of DAME PAULINE TALLEN & ORS V. DAVID JONAH & ORS 2011 LPELR-9311 CA.

In conclusion, he urged that the appeal be disallowed and dismissed. THE COURT As earlier stated that the 1st Respondent herein is a retiree and under the contributory pension scheme with the 2nd Respondent. The Appellant being aggrieved with the judgment being given in favour of the 1st Respondent as encapsulated in the five issues distilled for determination of this appeal. I shall first of all consider together and for obvious reason issues 1, 4 and 5 which deal with the question of jurisdiction of the Court and whether the Suit was properly and duly commenced at the Court below.

Issues 1, 4 and 5 are hereunder reproduced for ease of reference: ISSUE 1 “Whether the learned trial Judge was right in assuming jurisdiction and upholding the Claimant’s principal declaratory relief number A when the relief contained in paragraph 32 (a) of the amended statement of facts as sought by the Claimant was incompetent and ought to have been struck out” ISSUE 4 “Whether the learned trial Judge breached the Appellant’s right to fair hearing and breached his statutory duty by failing to determine the fundamental jurisdictional issue of non-exhaustion of administrative remedies raised and argued before him.” ISSUE 5 “Whether the Claimant’s action was initiated by the due processes of law through exhaustion of remedies and fulfilment of the condition precedent to the exercise of jurisdiction by the National Industrial Court.” The contention of the Appellant included the allegation that the 1st Respondent was wrong to have commenced the Suit at the time he did without completing the procedure of dispute resolution he initiated when he lodged a complaint against the 2nd Respondent on the latter’s intention to pay him 25% lump sum out of his pension savings.

It was argued for the Appellant that for that reason, he failed to comply with the due process of the law and the jurisdiction of the Court was prematurely invoked. Further that the applicable Regulation provided for the parties to go for arbitration before litigation. ​ The issue of jurisdiction in the administration of justice system has become so elementary and beyond any debate. Jurisdiction is the authority which a Court has to decide a matter before it. It is the entire foundation for a Court to take cognizance of any matter presented before it for adjudication.

It is very radical and crucial in the adjudication of any matter as it is the cornerstone, the foundation for and life line therein. Any Court proceeding without jurisdiction amounts to a nullity and of course a futile exercise. See the cases of IDIH V. UTENO 2009 LPELR – CA/A/230/06, MADUKOLU V. NKEMDILIM 1962 2 SCNLR P.341, HAMZAT V. SANNI 2015 5 NWLR PT. 1453 486 and TUKUR V. GOVT. OF GONGOLA STATE 1989 4 NWLR PT. 117 592. It can be raised at any time and in any manner for the first time on appeal and even viva voce. See the case of PETROJESSICA ENTERPRISES LTD. V. LEVENTIS TECH. CO.

LTD. 1992 5 NWLR PT. 244 675.

The Appellant argued that the case of the 1st Respondent in its paragraph 32(a) of the amended Statement of Facts was incompetent and should have been struck out.

The said paragraph 32(a) states thus as contained on page 114 of the Record: “A DECLARATION that the computation of the Claimant’s lump sum/benefits by the Defendants done on the basis of 25% of the Claimant’s total retirement saving is in bad faith, wrong, defective, ran afoul of the law, not known to law, offends the principle of justice, fair dealings and good conscience therefore null and void and no effect whatsoever (sic).” This Court in the case of C. S. INC. V.

M/T CINDY GALA 2007 4 NWLR PT. 1024 222 per Ogunbiyi JCA as she then was clarified when a Claimant’s pleading or relief can be said not to be cognizable as follows: “Therefore, the determination of whether the Appellant’s claim at the lower Court was cognizable in admiralty is dependent on the totality of the facts on the Statement of Claim.

In other words, isolated and randomly picked paragraphs or even reliefs sought would not suffice to give a good picture of the totality of the claim.” In effect, to pick paragraph 32(a) as is being argued herein to the effect that the paragraph is vague as exact particulars of the wrong done by the Appellant and 2nd Respondent were not given.

Respectfully, one holds a contrary view and humbly because with an overall reading of the 1st Respondent’s said amended Statement of Facts and indeed the paragraph itself, one is not in doubt of what the 1st Respondent’s grouse is neither would the Appellant and the 2nd Respondent be misled or confused as to his grouse. That being the position, the submission that paragraph 32(a) is incompetent cannot be sustained. As regards the argument of the Appellant that the Court failed to determine fundamental jurisdictional issue of non-exhaustion of administrative remedies by the 1st Respondent.

That thereby, the Appellant was deprived of its right to fair hearing, miscarriage of justice was occasioned on the Appellant and the entire proceedings rendered void and of no effect in consequence. It is therefore pertinent at this juncture to consider what the Appellant refers to as the administrative remedies provided.

One finds in the Pension Reforms Act Section 106 which provides for dispute resolution as follow: “Section 106 (1) – An employee or beneficiary of a Retirement Savings Account who is dissatisfied with a decision of the Pension Fund Administrator or employer in respect of pension matters under this Act, may request, in writing, that such decisions be reviewed by the Commission with a view to ensuring that such decision is made in accordance with the provisions of this Act or any regulation made there under.” From a very careful reading of the Record, pages 111-114, the 1st Respondent’s back and forth with the 2nd Respondent which maintained their stand to pay 25% in response to his request for 75% lump sum of his pension savings and his complaint to the Appellant which was not attended to timeously, the 1st Respondent according to him had no option but to proceed to the Court.

One however fails to see and indeed respectfully that miscarriage of justice was occasioned on the Appellant as its fundamental right was not. ISSUES “2. Whether the learned trial Judge was right in suo motu awarding 50 percent lump sum pension to the Claimant without inviting the parties to address him on the propriety or otherwise of the said award. 3. Whether the Claimant discharged the burden of proof placed upon him and entitled to the reliefs granted to him by the learned trial Judge.” The foregoing two issues will be considered together.

Proof in civil cases such as herein is on preponderance of evidence or balance of probabilities. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1 and ITAUMA V. AKPA-IME 2000 7 SC PT. II 24. The burden is first on the Plaintiff to establish his case first with cogent and credible evidence before it shifts to the Defendant and the Plaintiff cannot rely on the weakness of the Defendant’s case except where the Defendant’s case supports his case. See the case of IHEKORONYE V. HART 2000 15 NWLR PT. 692 840.

The greater weight of evidence is otherwise referred to as preponderance of evidence which is not necessarily established by the greater number of witnesses testifying to a fact but by the most convincing evidence with superior evidentiary weight that even though it is not sufficient to free the mind wholly from all reasonable doubt will suffice to swing the mind impartially to one side other than the other. See the case of SUNDAT OKORIE V. IGNATIUS UNAKALAMBA 2013 LPELR-2011.

One will consider these Issues along with the findings of the Court below. ​ The Court made the following findings: By Section 1 of the Pension Reform Act, 2014, retirees are to receive their pension as at when due and to cater for their livelihood during old age. Section 7 (1) of the Act provides as follows: “7 (1) A holder of a retirement savings account shall upon retirement or attaining the age of 50 years, whichever is later, utilize the amount credited to his retirement savings account for the following benefits:- a.

Withdrawal of a lump sum from the total amount credited to his retirement savings account provided that the amount left after the lump sum withdrawal shall be sufficient to procure a programmed fund withdrawals or annuity for life; in accordance with extant guidelines issued by the commission, from time to time or b. Programmed monthly or quarterly withdrawals calculated on the basis of an expected life span; or c. d and e.

The position of the Court with regard to the foregoing provision of Section 7 (1) a and b is that “the claimant is entitled to lump sum withdrawal, it is noted that the Act did not make mention of a specific percentage of the lump sum which a retiree of the claimant’s age shall withdraw as it did vide Section 7 (2) of the same Act in relation to retirees of age 50 years, the only proviso lies in the fact that the amount after withdrawal of the lump sum by a retiree of other ages above 50 years should be sufficient to procure a programmed fund withdrawal or annuity/income for life based on the life expectancy of the retiree.” See pages 445-446 of the Record.

In my view and humbly, this interpretation is correct of the foregoing quoted Section 7 (1) given its clear and unambiguous provision.

In contrast, Section 7 (2) provides differently as follows and as correctly noted by the Court- “7 (2) Where an employee voluntarily retires, disengages or is disengaged from employment as provided for under Section 16 (2) and (5) of this Act, the employee may with the approval of the Commission, withdraw an amount of money not exceeding 25 percent of the total amount credited to his retirement savings account, provided that such withdrawals shall only be made after four months of such retirement or cessation of employment and the employee does not secure another employment.” ​ The Court further found from the amount the 2nd Respondent offered to pay as lump sum to the 1st Respondent to be 25% of the money in his account which was N21,196,906.90 and the Appellant offered to pay N5,065,501 at the first time and upon re-computation it offered the sum of N5,512,593.14 still representing 25%.

And the Court stated on page 446 of the Record thus correctly: “What this means is that the 1st defendant calculated his lump sum based on 25% as applicable to the retiree of 50 years. The claimant’s grouse however is that he cannot be treated like a retiree who retired voluntarily under Section 7 (2) of the Act.

He is 60 years and above and would thus want to withdraw 50% or 75% of his total pension.” Further stated thus on page 447 of the Record: “…In other words, the age category of the claimant i.e. 60 years and above was not in the contemplation of Section 7 (2) of the Act that specifically made provision for a 50 year old retiree to withdraw 25% lump sum … The Act was silent on the percentage lump sum a 60 year old and above who retires mandatorily is entitled to withdraw from his account presupposes that the claimant or any retiree of his age bracket can withdraw a substantial percentage as lump sum from his RSA account without any let or hindrance.

This in view of the unambiguous provision of Section 7 (1) of the Act … The only proviso here is that the balance after withdrawal of the lump sum shall be enough to procure annuity for life for the retiree.

This by Paragraph (b) of Section 7 (1) should be calculated on the basis of his life expectancy.” The Court applied the provision of Section 173 (2) of the 1999 Constitution which states as follows: “173 (2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in Subsection (1) of this Section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.” The aforegoing position of the Court is found in Clauses 4.0 and 5.1.1.

On whether or not the percentage to be awarded should be 50% or 75% of his total pension: As was found by the Court, there was no evidence by the 2nd Respondent to show the basis of its calculation, and the number years projected as the life expectancy of the 1st Respondent upon which the 2nd Respondent calculated the said 25% lump sum.

It however found that given the age of the 1st Respondent and by the 1st Respondent’s letter of May 30th, 2019, requesting the payment of 50% lump sum and the WHO life expectancy of male Nigerian it found 50% lump sum of his pension and the remaining 50% should be sufficient to procure a program fund withdrawals or annuity for life for the 1st Respondent. On the claim for 10% interest on the judgment sum, the Court found no credible evidence in that regard from the 1st Respondent and therefore that relief was refused.

The claim for general damages was rightly refused based on the principle of the law amongst other reasons and that he failed to substantiate his claim that he suffered financial embarrassment, inconvenience, life changing business, pains and economic hardship.

And for finding that the 1st Respondent should not have been put to the expenses of litigation if the Appellant intervened timeously and in accordance with the law by giving the 1st Respondent 50% lump sum it requested. One agrees with the foregoing findings and conclusion of the Court and for that reason the instant appeal cannot be allowed, it is hereby accordingly dismissed and affirm the judgment.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the benefit of reading in advance the judgment just delivered. My learned brother has comprehensively considered and resolved the essential issues that came up for determination in this appeal. Having carefully read the record of appeal and the submissions of counsel in their respective Briefs of Arguments, I am in complete agreement with my learned brother that this appeal lacks merit. It is hereby dismissed. The judgment of the Court below is hereby affirmed.

DANLAMI ZAMA SENCHI, J.C.A.: The lead judgment of my learned brother, E. O. Williams-Dawodu, JCA just delivered was read by me before now. I agree with the finding and conclusion reached therein that this appeal is unmeritorious and it is dismissed by me as well. ​ Accordingly, the judgment of the National Industrial Court, Abuja in suit No. NICN/ABJ/218/2018 delivered on the 18th day of May, 2020 by O. O OYEWUNMI, J is hereby affirmed. No award as to cost.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Port Harcourt Judicial Division wherein the Court affirmed the judgment of the High Court of Rivers State convicting the Appellant and two others for the offence of murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State.

BRIEF FACTS OF THE CASE The Appellant was arraigned with five others for the death of one Baribiae Iledae. The case of the Respondent was that the deceased and his sister, one Cecilia Tor-ue who testified as PW1 went to the deceased’s farm to do some work. PW1 in her evidence on oath testified that on their way back from the farm, the Appellant, the 1st and 3rd accused persons and others still at large who were in the 1st accused person’s Peugeot 504 drove past them, but then reversed the car and attacked the deceased with knives and axes while others joined them from the bush.

PW1 testified further that she went to a nearby village to call for help and upon her return to the scene of crime, the assailants had killed the deceased as a result of multiple machete wounds and left his body in the bush. That the following morning, she reported the matter to the village head, one HRH Mene Baridam of Lumene village who wrote her a letter which she took to the police.

According to PW1’s narrative, prior to the incident which culminated into the killing of her brother, there was a pending litigation between the deceased and the 1st accused person whose car was used in conveying the killers to the crime scene.

On his part, the Appellant denied committing the offence charged. He denied making a statement to the police which was tendered and admitted as Exhibit J and J2. At the conclusion of trial and after the adoption of final written addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant and two others guilty as charged and sentenced them to death by hanging.

The convicts were dissatisfied with the judgment of the trial Court and appealed to the Court below, albeit unsuccessfully. However, in a bid to exhaust his constitutionally guaranteed right of appeal, the Appellant in the instant appeal has invoked the appellate jurisdiction of this Court via a notice of appeal containing nine (9) grounds of appeal filed on 4th May, 2018.

EDWIN ANIIKWEM ESQ., in due observance with the Rules and Practice of this Court settled both the Appellant’s Amended brief of argument filed on 1 November, 2020 and Reply Brief filed on 16th February, 2022. For the determination of the appeal, the learned counsel for the Appellant formulated a sole issue to wit: “Whether on the total circumstances of this case, the Court of Appeal sitting at Port-Harcourt was right when it affirmed the conviction and sentence of the Appellant by the Court of Trial. (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)”

Arguing the sole issue, learned counsel submitted that it is evident that the Appellant was not one of those who killed the deceased as PW1 did not mention his name in her statement to the Police when the incident was still fresh in her memory, but only mentioned his name in her oral evidence made about two years after the incident occurred. He submitted that this contradiction in Exhibit A and the PW1’s oral evidence renders her evidence unreliable. Reliance was placed on POPOOLA V. STATE (2015) 6 NWLR (PT. 1456) 468, UCHE V. STATE (2015) 11 NWLR (PT. 1470) 380.

It was further submitted that where a witness claims to have seen a person committing a crime but does not name him at the earliest opportunity, the failure to mention his name will detract from any credibility which the Court would have attached to the witness’ testimony. Counsel cited the cases of UDEH V. STATE (1999) 7 NWLR (PT. 609) 1, ANI V. STATE (2009) 16 NWLR (PT. 1163) 443.

It was his contention that the failure of PW1 to mention the name of the Appellant to the Police despite knowing him prior to the death of the deceased is fatal to the Respondent’s case. That there was no evidence linking the Appellant with the offence charged as the Police did not explain how they got to arrest the Appellant having not been mentioned by PW1. ​ The Appellant’s counsel submitted that the only evidence that linked the Appellant to the crime was his statement to the police in Exhibit J.

He submitted further that Exhibit J is not confessional as the Appellant denied committing the offence. It was further submitted that the contents of Exhibit J are clearly contradictory to the events as narrated by PW1 and that this raises doubt as to the veracity of her evidence regarding the death of her brother.

Learned counsel referred to the extrajudicial statement of the 1st accused person at page 8 of the record of appeal and submitted that the 1st accused person stated therein that PW1 admitted to Chief Baridam that she did not know who killed the deceased; that PW1 told Chief Baridam that she accused him (the 1st accused) of killing the Appellant because he had previously falsely accused the deceased of robbing him. It was submitted that this is indicative of PW1 having a vendetta against the 1st accused person.

That the evidence of PW1 that the Appellant killed the deceased because of the pending litigation between them also further shows that she had an axe to grind with the Appellant. Counsel submitted that HRH Chief Baridam is a vital witness and that the Respondent’s failure to call him as a witness creates a reasonable doubt in the case of the Respondent. Reliance was placed on OSUAGWU V. STATE (2016) 16 NWLR (PT. 1537) 31.

It was submitted that the case as it pertains to the 1st accused person is important because if it is shown that he is not guilty, the Respondent’s case would collapse because as it was alleged that it was he who gathered the Appellant and others to kill the deceased. On the whole, counsel urged this Court to allow the appeal and to acquit and discharge the Appellant.

AYODEJI OMOTOSHO, ESQ., settled the Respondent’s brief flied on 25th August, 2021. The Respondent’s counsel merely adopted the sole issue formulated by counsel for the Appellant for the determination of the instant appeal.

Arguing the sole issue, counsel enumerated the elements of the offence of murder and submitted that the parties are ad idem that the first element was established beyond reasonable doubt. ​ In response to the Appellant’s contention that PW1’s evidence lacks credibility because she did not mention the Appellant’s name as one of the killers in her first statement to the police, counsel for the Respondent submitted that the contention is not supported by the available evidence as the trial Court found the testimony of PW1 to be direct, and unshaken on the identity of the Appellant as one of the killers of her brother.

Counsel further submitted that the evidence of PW1 was an eyewitness testimony which remained unshaken during cross-examination. He submitted that assuming the Appellant did not directly participate in the killing of the deceased, he would still be liable to be convicted for murder by the combined effect of Sections 7 and 8 of the Criminal Code. That by planning with the other culprits to kill the deceased and his failure to stop them from executing their plan makes him liable as a principal offender. The cases of ANYASODOR V. THE STATE (2018) LPELR – 43720 (SC), EGWUMI V.

THE STATE (2013) LPELR- 20091 (SC) were cited in support of this position.

On the third ingredient of the offence of murder, it was submitted that the post mortem conducted by PW7 which showed that the deceased died from about 10 machete wounds manifests the intention of the accused persons to kill the deceased or cause him grievous bodily harm.

Counsel urged this Court not to interfere with the concurrent findings of the lower Courts accepting the evidence of PW1 that the Appellant was one of those who killed the deceased as the findings of the Courts below are not perverse and are based on the evidence on record. Reference was made to the case of ISAH V. STATE (2017) LPELR- 43742. He finally urged this Court to dismiss the appeal and to uphold the decision of the lower Court affirming the conviction of the Appellant for the offence of murder by the trial Court.

Exercising his right of reply, counsel for the Appellant submitted that contrary to the position of the Respondent, PW1 cannot be said to be an eyewitness to the crime as she admitted to fleeing the scene of the crime when the assailants started attacking the deceased. In the final analysis, counsel submitted that there was no compelling circumstantial evidence linking the Appellant with the offence charged.

RESOLUTION In the determination of the instant appeal, I shall adopt the sole issue formulated by learned counsel for the Appellant which was equally adopted by the Respondent. The germane issue as rightly captured by the counsel for the Appellant is whether from the circumstances of this case and the totality of the evidence led at trial, the Court below was right to have affirmed the conviction and sentence of the Appellant for the offence of murder.

The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty.

The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGUA & ORS VS THE STATE (1970) LPELR-2780 (SC); Sections 135 & 138 of the Evidence Act 2011 (as amended).

The Appellant herein was charged with murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State.

It is trite law that the prosecution is duty bound to prove the following essential elements beyond reasonable doubt to secure a conviction for the offence of murder: 1. That the deceased is dead 2. That the death of the deceased person resulted from the Acts of the accused person 3. That the accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The above ingredients must co-exist and where one of them is either absent or tainted with any doubt, the charge is said not to be proved.

See the cases of ILIYASU VS THE STATE (2014) 15 NWLR (PART 1430) 245, SULE VS THE STATE (2009) 17 NWLR (PT.1169) 33, NKEBISI VS THE STATE (2010) 5 NWLR (PT.1188) 471. MBANG VS STATE (2010)7 NWLR (PT 1194) 431, USMAN VS THE STATE (2011) 3 NWLR (PT.1233) 1, SABI VS THE STATE (2011) 14 NWLR (PT.1268) 421, ULUEBEKA VS STATE (2011) 4 NWLR (PT.1237) 358.

To determine whether the Respondent proved the offence of murder against the Appellant beyond reasonable doubt is an issue to be determined after revisiting the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means: a) Evidence of an eyewitness of the crime; b) Confession or admission when voluntarily made by the accused; and c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence. See the case of ADEYEMO V.

STATE (2015) LPELR – 24688 (SC).

In a bid to discharge the burden of proof imposed on it by law, the Respondent called eight witnesses and tendered several exhibits including Exhibits J and J2 (the extra-judicial statement of the Appellant) and Exhibit L (the report of the autopsy of the deceased). One Cecilia Tor-ue testified as PW1, and on the basis of her testimony coupled with that of PW7, one Dr. Charles Ngor Amakiri, the Appellant was convicted for the offence of murder. To start with, it is not in contention in this appeal that the deceased died.

The evidence of PW7 who conducted the post-mortem examination on the deceased’s body puts it beyond peradventure that the deceased died as a result of Hypovolaemic shock due to blood loss from injuries sustained from multiple machete cuts inflicted on him. The decision of the Court below regarding the death of the deceased was not challenged and failure of the Appellant to challenge this specific finding means that the said finding is accepted as binding on him. On failure to challenge a specific finding of a Court, see the cases of ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v.

OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140, OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56; (2006) 15 NWLR (pt.2002) 342, STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135. The issues in contention in this appeal are whether the deceased’s death was caused by the act or omission of the Appellant and whether the act or omission causing the death of the deceased was intentional.

I stated in the preceding paragraph that the testimony of PW1 forms the fulcrum upon which the Appellant’s conviction was erected. It is therefore on this basis that I find it expedient to reproduce her evidence at trial. PW1 in her testimony at page 93 of the record of appeal testified as follows: “My names are (sic) Cecilia Tor-ue. I live at Nyowii Lueku. I am a farmer. I know all the accused persons in the dock. I can remember the date of 9/11/2001. On 9/11/2001, my brother by name Baribiae Iledea came and met me at Nyowii, that I should follow him to his farm.

After we finished work on the farm, we were returning home at about 7pm., one Chief Sakpugi Gonee drove his car and passed us as we were returning. Sakpugi Gonee is the 1st accused person. The 1st accused after passing us to a distance he stopped the car and in the 1st Accused car, are one Lambert Nwiko, Promise Aanee, he is here in Court, Lambert Nwiko is the 2nd accused person. Nanee Baede is also here in the Court and he is the 6th accused person. This was along the road between Nyowii and Lumene.

As they drove past us they revised back and stopped by us they came out of the vehicle and grasped my brother. They brought out with them sticks, axe, gun and knife and attacked my brother. As they grasped my brother, four other men emerged from the bush to join them to attack my brother. One of the four persons that came out of the bush was Stephen Nuanya, others are Tor-ue Zimnee, Pie Nwisah, Nna Nyonya.

As they were attacking my brother in the bush I ran back to the Bionu village and as I arrived there I was shouting and I met one Goodluck Nwidonu, Lekia Konbe and others whom I requested to help me. I told the people that my brother was being attacked and requested them to go with me. They followed me from Bionu village and when we arrived at the scene we found out that my brother had been killed and left in the bush.”

From the evidence of PW1 elaborately reproduced above, it can be deduced that the Appellant and the 1st accused person were known to her before the incident that led to the killing of her brother. She stated in her evidence on the same page 93 of the record that: “Before the incident, the 1st accused had already had a matter with my late brother at Court 6, Port-Harcourt on a case of stealing.”

To add credence to her testimony, PW1 in her extra-judicial statement made to the Police on 10/11/2001 and admitted as Exhibit A mentioned the name of the Appellant as part of those who killed her brother on 9th November, 2001.

The Appellant on the other hand, in his extra-judicial statement tendered and admitted as Exhibit J stated that: “I am Lambert Nwiko ‘M” from Idam’s family in Nyogue compound in Lumen: Bangha in Khana L.G.A of Rivers State. I attended my primary education at State School. Lumene but finished in 1979. Presently, I am a palm wine tapper. I know the late Baribiae Iledae as my village boy, and also I know Chief Sakpugi Gonee as my brother. I always go to the house of Chief Sakpugi any time that I have a problem and he do assist me.

What actually happened was that Chief Sakpugi Gonee and the late Baribiae Iledae had a case, which the late Baribiae was remanded in prison custody and late Baribiae was released from Prison as Baribiae was released from prison custody. Chief Sakpugi Gonee organized some boys, including myself, Aawa Aanee. Lekara Gionee. Tor-ue Zimnee, Nnaa surname unknown but can been identified if seen. One Stephen Nyanyaa, Kuebari Gonee, N.P.P. Gonee, Nambeabu Nwilebari. Money Nue-ue and Aba Mark to guard him so that Baribiae Iledae would not kill him and damage his properties!

I then joined to guard him for two nights. The two days I stayed with them at Chief Sakpugi house, we and Chief Sakpugi planned how to kill the said Baribiae Iledae. We used guns and matchets to guard Chief Sakpugi. During the guard we used three guns. Aawa, Aanee carried one gun, Ue-Bari Gonee and N.P.P. Gonee also carried one gun each, while Nambeabu Nwile-Bari came with his own special gun as he is a hunter. Then on the 9/11/2001 at about some minutes to seven in the evening. Chief Sakpugi sent one of his sons called Lekara Gonee to call me.

As I got to Chief Sakpugi’s house, his son Lekara asked me to enter his father’s vehicle which I did. As I entered the vehicle already Chief Sakpugi was there, he Kara who drove the vehicle. N.P.P. Aawaa Aance. Stephen Nyanyaa, Kue-Bari while other persons Money Nee-ue, Aba Mark, Nambeabu Nwile-Bari and Nanee Baade treke to the place known as Lumene/Bionu road. All our killing instruments such as guns/machetes we carried inside Chief Sakpugi’s vehicle 504 vehicle. On getting at a point along Lumene/Bionu road Chief Sakpugi dropped us and instructed us to kill Baribiae Iledae.

After giving us this instruction. Chief Sakpug, gave me the sum of two thousand naira but I don’t know how much he gave to the other people. Chief Sakpugi knew that Baribiae would be returning from farm at that particular time, because Chief Sakpugi has a farm there and he knew that Baribiae would be returning by then. After collecting the money, I ran away, I did not take part in the killing. Later I heard in the village that Chief Sakpugi and these people. I mentionce their names have killed the said Baribiae Iledae.

For more clarification as Chief Sakpugi dropped us from his vehicle, Neesane Gonee carried matchet, while Aawa Aanee used his gun. After killing Baribiae Iledae, the above-mentioned killers went to Kabangha river/stream and washed themselves.

I was not with them but they told me when they came back to the village.” Upon the tendering of the Appellant’s extra-judicial statement in Exhibit J, the Appellant denied making the said exhibit and the trial Court, in due observance with the principles guiding retraction of extra-judicial statements, admitted the said statement and thereafter looked for other evidence on record to ascertain whether the said statement was true and probable. The Appellant in his evidence at trial merely denied the allegation, however, he admitted knowing the 1st accused person and the deceased.

Going by the testimony of PW1 and that of PW7 on those who killed the deceased and the cause of his death, it is safe to conclude that the Appellant’s confession was probable and true and his denial of the role he played in the death of the deceased was a mere afterthought. In Exhibit J, the Appellant gave a graphic account of how the deceased was killed. The narration in Exhibit J is identical to the testimony of PW1 on how the deceased died.

In Exhibit J, the Appellant admitted to have taken part in the planning of the murder of the deceased but that he ran away when the deceased was about to be killed. The Appellant admitted to be at the crime scene and this made him know that one Neesane Gonee carried a matchet while one Aawa Aanee used his gun in the killing of the deceased. These vital information would have been unknown to him if he truly ran away as claimed.

As rightly held by the learned trial judge who had the opportunity to watch the demeanour of witnesses and whose primary duty is to evaluate the evidence led at trial, in the face of the positive identification of the Appellant by PW1 in both her evidence on oath and her extra-judicial statement, it is highly true and probable that the Appellant made Exhibit J and that he was part of those who killed the said Baribiae Iledae on November, 2001.

The trial Court at page 215 of the record held as follows: “I hold therefore that Exhibits J and J2 were properly admitted and binds the 2nd accused person only, particularly in the light of the positive eye witness account of PW1 linking and fixing the 2nd accused to the events of 9/11/2001 at Bionu/Lumene Farm Road. Using Exhibits J and J2 as hanger on which to assess the veracity of the 2nd accused person as is allowed by law, I find that his evidence on oath basically are lies concocted by him to mislead this Court. I do not therefore, believe him at all.

He is not a witness of truth and the entirety of his evidence before me is hereby discountenanced.”

Going to the last ingredient of the offence of murder which is that the accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence, I am of the view that a person who cuts another with a machete severally causing excessive bleeding leading to Hypovolaemic shock ought to know that death or grievous bodily harm was the probable consequence of his action.

I therefore hold that the Respondent led satisfactory evidence proving the guilt of the Appellant for the offence of murder beyond reasonable doubt. It is trite law that in criminal trials, the standard of proof placed on the prosecution is proof beyond reasonable doubt and not beyond every shadow of doubt. See AJAYI V. STATE (2013) 9 NWLR (PT. 1360) 589, BASSEY V. STATE (2012) 12 NWLR (PT. 1314) 209.

The counsel representing the Appellant made heavy weather on the failure of the Respondent to call Chief Baridam as a witness because the 1st accused person in his extra- judicial statement stated that PW1 was out to ensure the conviction of the accused persons because he had previously accused her brother of stealing. I am of the view that if Chief Baridam was a crucial witness in establishing the motive of PW1 as alleged by the Appellant’s counsel, nothing stopped the Appellant from calling the said witness considered vital to his defence.

The failure to call such witness is to the Appellant’s detriment and the presumption of withholding evidence cannot be imputed on the Respondent who was not duty bound to call a particular number of witnesses in so far as it is satisfied that the number of witnesses to be fielded was enough to secure a conviction.

The Appellant’s counsel in his brief also argued strenuously on the innocence of the 1st accused person at trial. According to his submission, if it is shown that the 1st accused person is not guilty, the Respondent’s case would collapse because it was the 1st accused who was said to have gathered the Appellant and others to kill the deceased. Let me at this juncture point out that the instant appeal was initiated by Lambert Nwiko, the Appellant herein.

The Appellant’s counsel cannot foist on this Court to use the instant appeal to set aside the conviction and sentence of the 1st accused person. In appellate proceedings, issues for determination are not formulated out of nowhere. They must have their roots in the grounds of appeal. The submissions and arguments on issue(s) distilled from the grounds of appeal must in turn also have their foundation from the issues formulated for determination.

The Appellant’s counsel skillfully, albeit unsuccessfully tried to surreptitiously bring an appeal on the findings of the trial Court on the guilt of the 1st accused using same as leeway to argue the innocence of the Appellant. Assuming but without agreeing that the Appellant’s counsel is not precluded from raising these points, it is my opinion that all the submissions and arguments regarding the failure of the Respondent to dislodge the defences raised by the 1st accused have no root in the grounds of appeal before this Court.

A perusal of the grounds of appeal vis-a-vis their particulars would reveal that a substantial part of the Appellant’s brief was targeted at proving the innocence of the 1st accused person whose appeal is not before this Court. It is regrettable that the Appellant’s counsel made more submissions and arguments regarding the innocence of the 1st accused person than that of the Appellant, whose appeal is under consideration. I find this alien to appellate practice and procedure.

In conclusion, by reason of the failure of the Appellant to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court, the consequence therefore is that the appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Port Harcourt Judicial Division wherein the Court affirmed the judgment of the High Court of Rivers State which convicted the Appellant for the offence of murder contrary to Section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Rivers State is hereby affirmed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Jauro, JSC, just delivered. I, entirely, agree with His Lordship that this appeal is unmeritorious and should be dismissed. ​ On the sole issue submitted for determination, learned counsel for the appellant urged this Court to allow this appeal for the following reasons: 1. That PW1 failed to properly identify the appellant by name at the earliest opportunity in her statement to the Police (Exhibit A), but only did so in her oral evidence, two years after the incident had occurred; 2.

That the contradiction in Exhibit A and PW1’s oral evidence renders her evidence unreliable; 3. That appellant’s extra-judicial statement, Exhibit J is contradictory to the events as narrated by PW1 and raises doubt to the veracity of her evidence; 4. That the respondent failed to call one Chief Baridam as a vital witness creates a reasonable doubt in the case of the respondent; 5. That PW1 cannot be said to be an eye witness having admitted to fleeing the scene of the crime when the assailants started attacking the deceased; and 6.

That there is no compelling circumstantial evidence linking the appellant with the offence charged.

On its part, the respondent urged this Court to dismiss the appeal on the following grounds: 1. That the trial Court found the oral evidence of PW1 to be direct, and unshaken on the identity of the appellant. 2. That appellant could still be convicted by the combined effect of Sections 7 and 8 of the Criminal Code by planning with the other culprits to kill the deceased. 3. That the post mortem conducted by PW7 which showed that the deceased died from about 10 machete wounds manifests the third ingredient of the offence of murder.

In the instant case, the trial Court accepted the evidence of PW1, Cecilia Tor-ue. It found the said PW1’s testimony to be direct and unshaken as to the identity of the appellant. Due regard should be given to the trial Court which is in the best position to comment on the credibility of a witness, having had the opportunity of hearing and watching their demeanor during examination. See State v. Emine and Ors [1992] LPELR-3218 (SC), Numo Mallam Ali v. State [1988] 1 NWLR (pt. 68) 1, 15.

The lower Court, in my humble view, rightly affirmed the trial Court’s findings. ​ I add, moreover, that in proving its case, the Prosecution is not required to call any particular number of witnesses or a host of witnesses. All he needs to do is to call enough material witnesses to satisfy the burden of proof. Where the Prosecution fails to call a particular witness and the defendant deems his evidence crucial to his case, he is at liberty to call that witness himself.

In the instant case, in view of the credible evidence given by PW3 and PW7, the Prosecution was not obliged to call Chief Baridam. He was not a material witness to the case of the Prosecution, Okonofua v. State [1981] 6 -7 SC 1; Afolalu v. State [2010] 16 NWLR (pt. 1220) 584; Olayinka v. State [2007] 9 NWLR (pt. 1040) 561; Ochiba v. State [2011] 17 NWLR (pt. 1277) 663; Adaje v. State [1979] 6-9 SC 18.

On the issue of contradictions, it must first be stated that whether there were contradictions in evidence of witnesses is primarily the duty of the trial Court to determine. If there were contradictions, the said Court ought to advert them and then take them into consideration in the evaluation of the credit of the witnesses, Igbi v. State [2000] 3 NWLR (pt. 648) 169.

Furthermore, it is not in all cases that the allegation of contradictions or conflicts in the evidence of the Prosecution would be fatal to the Prosecution’s case, John Agbo v. State [2006] 1 SCNJ 332, 342; State v. Danjuma [1997] 5 NWLR (pt. 506) 512. Contradictions in evidence, which do not affect the substance of the issue, are irrelevant. The contradiction that would make an appellate Court disbelieve the Prosecution’s 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, Enahoro v. State [1965] NSCC (Vol. 4) 98, 113, Isibor v. State [2002] 4 NWLR (pt. 758) 741, Sele v. State [1993] 1 NWLR (pt. 269) 276, Jimmy v. State [2013] 18 NWLR (pt. 1386) 229. In this case, I am unable to find the contradictions that the appellant alleges. No serious premium deserves to be placed on same.

By virtue of the unequivocal provisions of Section 135 (3) of the Evidence Act, the Prosecution has the responsibility of proving each charge against the appellant (accused person) beyond reasonable doubt in any of the following established manners: a. By direct evidence of an eyewitness of commission of the offence by the accused person; or b. By the confessional statement of the accused person; or c. By circumstantial evidence linking the accused person, and no other, with the commission of the offence. See Ilori v. State [1980] 8-11 SC 18; Emeka v.

State [2001] 14 NWLR (pt.734) 666; Igabele v. State [2006] 6 NWLR (pt. 975) 100. It therefore goes without saying that circumstantial evidence will only be resorted in the absence of direct evidence of eye witnesses.

Here, there is direct evidence of an eye witness and it is immaterial that the eyewitness fled the scene having witnessed the gruesome act, what is important is that the eye witness identified the appellant as one of the persons responsible for the grievous bodily harm done on the deceased which led to his eventual death, and fixed him at the scene of the crime at the material time. Requiring further circumstantial evidence from the Prosecution is unnecessary as the above requirements under the Evidence Act are mutually exclusive to each other.

I am not unmindful of the settled principle of law that this Court, the Supreme Court, does not make it a practice of setting aside the concurrent findings of fact by the lower Courts. I have no reason for arriving at a divergent conclusion in this appeal. Hence, like the leading judgment, I too will dismiss this appeal. Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Jauro, JSC, and I agree with him that this appeal lacks merit. He addressed the sole issue raised in the appeal decisively and I will not hesitate to adopt his reasoning and conclusion. This Court is handicapped when an appeal turns on credibility of Witnesses because it is the trial Court that saw the witnesses, heard them, and watched their demeanour in Court that is in the position to believe or disbelieve them – Adelumola V. State (1988) 1 NWLR (Pt. 73) 683.

More importantly, there is a rebuttable presumption that its findings on primary facts are correct, and the duty of this Court to interfere with or set aside improper findings or correct erroneous conclusions reached by the trial Court would only come into play where the trial Court had failed to properly examine and evaluate the evidence before the Court. See Sanni V. State (1993) 4 NWLR (Pt. 285) 99 and Nwankwoala V. State (2005) 12 NWLR (pt. 940) 637.

In this case, there is no justifiable reason provided by the Appellant to question the findings of the trial Court based on the credibility of the witnesses, and it is clear to me that there is more than enough evidence adduced by the Prosecution to support the concurrent findings of fact by the two lower Courts. Thus, this Court cannot intervene, and the concurrent findings remain standing.

It is for this and the other well-articulated reasons in the lead judgment that I also dismiss this appeal and affirm the judgment of the Court of Appeal.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother, ADAMU JAURO JSC. I agree with his Lordship’s reasoning and conclusion that the appeal should be dismissed.

This is an appeal against the concurrent findings of facts of the two lower Courts, wherein, the Court of Appeal, Port-Harcourt Division, on the 7th day of July, 2011, delivered its judgment affirming the judgment of the trial Court delivered on the 29th day of February, 2008. ​ The facts that led to this appeal are as follows: The Appellant and six others were arraigned on the 9th day of November, 2001 for the murder of Baribiae Iledae, at Bionu/Lumene Farm Road in the Bori Judicial Division of the High Court of Rivers State, contrary to and punishable under Section 319 (1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable in Rivers State.

Three of the arrested Defendants were discharged based on a no-case submission. The Respondent (as the Prosecution) at the trial Court called eight (8) witnesses who testified as PW1-PW8 and tendered various documents admitted as Exhibits A-N. The Appellant, called three (3) witnesses who testified as DW1, DW2 and DW3 respectively and various documents were tendered through them and admitted as Exhibits N1-O respectively.

Cecilia Torue, who was PW1 and the elder sister of the deceased (a material eye witness) had testified that she was with the deceased on their way to their farm when the Appellant and others attacked the deceased with knives and axes. Thereafter she ran to the nearby Bionu Village for help. She returned with PW4, Lekia Kombe and PW5, Goodluck Doneh. They found that the deceased had been killed and dumped on the bush path. The Appellant and two (2) others were convicted and sentenced to death.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court below. The Court below delivered judgment on the 7th day of July, 2011, dismissed the appeal and affirmed the the 7th day of July, 2011, dismissed the appeal and affirmed the judgment of the trial Court. Aggrieved by that judgment, the Appellant has appealed against the concurrent findings of the trial Court and the Court of Appeal to this Court.

The sole issue for determination before this Court is: “Whether on the total circumstances of the case, the Court of Appeal sitting at Port-Harcourt was right when it affirmed the conviction and sentence of Appellant by the Court of Trial (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)”

In ETIM ETIM UDO v. THE STATE (2018) LPELR-43707(SC) Page 11-12, Paras. F-E this Court Per PETER-ODILI, JSC held thus: “For the offence of murder as in the case at hand, the prosecution must prove the following ingredients which are thus: – a. That the deceased had died. b. That the death was caused by the act of the accused persons. c. That the act of the accused person that caused the death was done with the intention of causing death or that accused knew that death would be the probable consequence of his act.

See Okoro v The State (2012) vol.207 LRCN 108 at 137; Chukwu v The State (2012) 213 LRCN 96 at 109; Asuquo v The State (2016) 257 LRCN 16 at 45. In establishing those elements above stated, either evidence of an eye witness ii. A free and voluntary confession of the accused; iii. Circumstantial evidence which must be cogent, positive and conclusive. See Haruna v A. G. Federation (2012) 209 LRCN 70; Ani v The State (2003) 11 NWLR (Pt. 803) 142.”

My Lords, it is the case of the Appellant that he did not participate in the killing of the deceased contrary to the testimony of PW1. That PW1 did not name the Appellant as one of the assailants of the deceased in her first statement to the Police. Consequently, her testimony accusing the Appellant of attacking the deceased lacks credibility. The vociferous argument that PW1 did not mention him in her statement to the Police is factually untrue since she mentioned him in the said extra judicial Statement admitted as Exhibit A made on 10/11/2001 a day after her brother died.

Thus, there is clear uncontroverted evidence of an eye witness.

In Exhibit J., the Appellant had affirmed that he went with the assailants to the scene of crime, he ran away and did not participate in the crime and did not witness the actual crime being committed. I believe that Exhibit J was given proper probative value as the issue of voluntariness was not raised by the Appellant and the detailed confessional statement was probable and credible.

I agree with the two lower Courts that the fact that the Appellant did not participate in the actual killing of the victim by hacking him with a cutlass to death does not exculpate him from the offence of murder by virtue of the combined effect of Sections 7 and 8 of the Criminal Code. Section 7 of the Criminal Code states: When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with the actually committing it, that is to say: a.

Every person who actually does the act or makes the omission, which constitutes the offence. b. Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; c. Every person who aids another person in committing the offence d.

Any person who counsels or procures any other person to commit the offence Section 8 provides that: When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purposes, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The Appellant planned with others to kill the deceased and did nothing to stop them, even as the Appellant claimed that he did not participate in the killing but ran away after collecting money for the job, he is deemed to have committed the offence of murder by virtue of Section 7 and 8 of the Criminal Code, and liable as a principal offender. See IJEOMA ANYASODOR v. THE STATE (2018) LPELR-43720 (SC).

There is absolutely no reason to upset the reasoning, judgment and orders of the two lower Courts.

They are not perverse and accord with the justice of the facts of this case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This appeal is hereby dismissed. Judgment of the Court below is affirmed. I abide by all orders in the lead judgment.

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

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the decision of the Court of Appeal Enugu Division (herein called the Court below) which judgment was delivered on the 29th day of June 2019.

The Appellant was tried before the High Court of Ebonyi State on a one count charge on the offence of murder contrary to Section 319 of the Criminal Code Law Cap 33 Vol 1 Laws of Ebonyi State. The one count charge is reproduced as follows: Statement of offence Murder contrary to Section 319(1) of the Criminal Code Law CAP 33 Vol 1 Laws of Ebonyi State of Nigeria 2009. Particulars of offence Amaoge Chukwu on the 31st day of August 2009, at Akaeze Ukwu Village Ndubia River in Ivo Judicial Division murdered Ajali Amah.

The facts leading to this appeal are, that prior to the 31st day of August 2009, the deceased and the Appellant had some sort of misunderstanding which resulted in the deceased always calling the Appellant derogatory names at every given opportunity. On a fateful day, the Appellant went into the bush to defecate wherein he was accosted by the deceased who again rained derogatory words on him.

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The Appellant later saw her at the river bathing and he pushed her into the river where she was later found dead. It is on record that an angry mob attacked the Appellant but the situation was later brought under control. The matter was reported to the Nigerian Police force who arrested the Appellant and commenced investigation into the offence. Six witnesses were called upon by the IPO who volunteered to give in their statements before the Police. See pages 3 of the Record of Appeal. The Appellant also gave an extra judicial statement under words of caution. See page 21 of the Record.

​At the close of investigation, the Appellant was charged before the High Court of Ebonyi State. The Appellant pleaded guilty to the charge but the learned trial Judge entered a plea of not guilty in favour of the Appellant, being that it was a capital offence and the matter proceeded to trial.

​The Prosecution in proof of its case called in a sole witness who was the Investigating Police Officer and tendered ten (10) exhibits. The Appellant entered defense and testified in his defence. After the close of evidence, parties filed their respective final addresses and the

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learned trial judge on the 30th day of June 2014 at pages 62-81 of the Record convicted the Appellant and sentenced him to death by hanging.

The learned trial Judge had this to say: It is consequently the net finding of this Court that the prosecution proved the three ingredients of murder beyond reasonable doubt as required by law… consequent upon the credible and convincing evidence adduced by the prosecution against the accused person, I hold as follows, I find the accused person Amaoge Chukwu guilty of the murder of the accused person Ajali Ama accordingly the sentence of this Court upon you Amaoge Chukwu is that you be hanged by the neck until you be dead. May the Lord have mercy on your soul.

Dissatisfied with the judgment of the trial High Court, the Appellant immediately appealed to the Court below via a three ground undated Notice of Appeal which is contained at pages 82-84 of the Record. Parties filed their respective briefs at the Court below and in its judgment, the Court below, after considering all the issues raised, unanimously dismissed the Appellant’s appeal.

​At page 148 of the Record, the Court below held inter

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alia: “I find no merit in this appeal. The appeal is totally devoid of merit and it is hereby dismissed. The judgment of  the High Court of Ebonyi State delivered in Charge No. HSK/5C/2013 on 30/6/2014 by Honourable Justice I.P. Chima, is hereby affirmed. The conviction and sentence passed on the Appellant is hereby affirmed.”

Still aggrieved, the Appellant appealed to this Court. The Notice of Appeal filed on the 20th of July 2018, contains three grounds.

In accordance with the practice and accepted procedure of this Court, both parties filed their respective briefs. The Appellant formulated two issues for determination which are: 1. Whether at the time of the death of the deceased, the appellant was not suffering from a state of mind bothering on insanity. 2. Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the evidence of murder beyond reasonable doubt against the appellant through cogent and credible evidence required by law.

The Respondent also distilled two issues for determination. They are: 1. Whether the defence of insanity not raised or

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established by the accused person during his trial can avail him? 2. Whether the Prosecution successfully proved the offence of murder against the Appellant?

​The issues formulated by Counsel on both sides, are the same in purport, though couched differently. I adopt the two issues canvassed by the Appellant as the issues to be determined in this appeal.

ISSUE ONE Whether at the time of the death of the deceased the appellant was not suffering from a state of mind bothering on insanity. It is submitted for the Appellant that at the time of the alleged offence of murder, he was suffering from a state of mind bordering on insanity, He referred this Court to pages 52 lines 9-12 of the record that the Investigating Police Officer was timely informed about the fact that the Appellant was insane. He argued that the IPO waived it and conducted no investigation as to the genuineness of the defense raised.

He further stated that the Appellant in his statement at page 21 was referring to an illusory person Ajali Chukwu not the deceased person. He referred this Court to the Appellant’s statement at pages 21 from lines 4 which states as follows:

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I know Ajali Chukwu. She is from our village. I was bathing in the river with Ajali Chukwu on 31st August 2009 when I pushed her and the river carried her. I did not use any stick on Ajali Chukwu.

Expatiating on this issue of insanity, he said the Court below failed to take into consideration the inconsistent behavior and statement of the Appellant. That on two occasions before the trial Court as soon as the clerk reads out the information to the Appellant, he interrupts and shouts that he was guilty without knowing the consequences of death by hanging.

He said what played out in this case had the semblance of a partial insanity which made the Appellant lack understanding of what he was doing at the time of the commission of crime and trial. He referred us to this Court’s decision in: MOHAMMED V THE STATE (1997) 9 NWLR (PT 520) 169; LOKE V THE STATE (1985) 1 NWLR (PT 1).

​Learned counsel for the Appellant submitted that the sole witness for the Prosecution knew that the Appellant had a mental condition and the revelation came from the father. He stated that he took the plea of saying ‘go forward and hang me’ when he was in a

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lucid state, but when he regained consciousness, he denied committing the offence. He raised the issue of motive and in its absence; there can be no intention to commit an offence. He further stated that mere pushing someone into the river without motive cannot be held to constitute intent to commit murder. Finally, he referred this Court to the cases of: IDOHO V THE STATE (2010) 14 NWLR (PT 1214) 651; ANI V THE STATE (2002) 10 NWLR (PT 776) 644. He urged this Court to discharge and acquit on the grounds of insanity.

In response to the above, learned Counsel for the Respondent referred this Court to the provisions of Section 27 of the Criminal Code Law, CAP 33 Vol 1 Laws of Ebonyi State of Nigeria 2009, which it provides that: “Every person is presumed to be of sound mind, and to have been of sound mind at any time which come in question, until the contrary is proved.” He relied also on these cases: ARISA v THE STATE (1988) 3 NWLR (Pt 83) 38, ONYEKWE v THE STATE (1988) 1 NWLR (Pt 72) 565.

​Expatiating on this issue, he submitted that the burden of proof of insanity does not rest on the Prosecution

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and that the Prosecution has no legal duty or responsibility to prove an accused person is insane. He placed reliance on the case of ARISA v The STATE (supra) and as well as Section 28 of the Criminal Code (supra).

Learned counsel for the Respondent submitted that by the provisions of Section 139 of the Evidence Act, the burden of proving insanity lies on the person who alleges it. He stated that in order to successfully establish a defense of insanity, the Appellant must prove that he was suffering from mental disease or natural mental capacity at the material time the offence was committed, and this the Appellant failed to do.

He distinguished the case of LOKE v THE STATE (supra) as cited by the Appellant’s counsel from the instant appeal, and submitted that whereas in LOKE’s case, there were witnesses who testified that the accused person was not mentally balanced at the day and time that he killed the victim, in the instant appeal, there is no such evidence of mental incapacitation. He finally urged this Court to discountenance the Appellant’s submission on insanity.

​The law is settled that the burden of proof of insanity lies on

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the accused person. In NDU v THE STATE 1990 LPELR-1975 SC this Court held as follows: The law is that the burden of proving insanity rests on the accused person. Of course the burden of proof which he has to discharge is a light one. It is a proof by a preponderance of evidence or on a balance of probability. The defense of insanity is a plea which must be positively put forward by way of defence and evidence should be adduced in support.

Also in ANI V THE STATE (2002) 10 NWLR PT 776 644, this Court had this to say; The burden on the accused to prove his insanity, however is merely as in civil cases that is to say on the balance of probability or the preponderance of evidence.

In the more recent case of NWODE v THE STATE (2019) LPELR-49372 SC, this Court had a reason to interpret Section 28 of the Criminal Code Law supra, and held as follows: Section 28 of the Criminal Code Law supra provides as follows; a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him capacity to

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understand what he is doing or of capacity to control his actions… however by Section 27 of the same act, the onus of proving insanity is on the accused who is required to make available evidence to satisfy the Courts that he was insane at the time he committed the offence.

In order to succeed in a plea of insanity, the Appellant must before the trial Court, prove on the balance of probability that as at the time of committing the offence, he lacked the capacity to; 1. Understand what he was doing 2. Control his actions 3. Know that he ought not to act or make the omission See BABANGIDA JOHN v THE STATE (2012) 7 NWLR (PT 1299) 336.

The issue agitating my mind in the instant appeal, is whether the Appellant herein has discharged this elementary burden placed on him.

​I have examined the evidence on record. The only evidence of insanity is the information given to PW1 during investigation by the Appellant’s father. The Appellant did not call his father or any other witness to testify to his alleged insanity. The evidence of PW1 that the Appellant’s father said so is hearsay and is inadmissible by virtue of

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SECTIONS 37 and 38 of the EVIDENCE ACT 2011 to prove that the Appellant was/is insane.

In NWOYE IGWEZE ONYEKWE v. THE STATE (1988) LPELR 2732 (SC), this Court detailed some of the guiding principles in establishing insanity viz: 1. Evidence as to the past history of the accused. 2. Evidence as to his conduct immediately preceding the killing of the deceased. 3. Evidence from Prison Warders who had custody of the accused and looked after him during his trial. 4. Evidence from Medical Officers and/or Psychiatrists who examined the accused. 5.

Evidence of relatives about the general behaviour of the accused and the reputation he enjoyed for sanity or insanity in his neighbourhood. 6. Evidence showing that insanity appears in the family history of the accused. See also UDOFIA v. STATE (1988) LPELR 3305 (SC).

There is nothing on record to show that the evidence adduced on behalf of the Appellant met any of the above listed guidelines to establish the defence of insanity. I therefore agree with learned counsel for the Respondent that the instant appeal is distinguishable from, and not on all fours with, the case of

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LOKE v. THE STATE (1985) LPELR 1789 (SC). In LOKE’S case, there was ample evidence on record from relatives and neighbours as to the Appellant’s state of mind before, and after he killed his victim. This is not the situation in the instant appeal.

In his statement admitted at the trial as Exhibit G, the Appellant stated as follows: “I, Amaoge Chukwu (m) freely wish to state as follows: I am from Akaeze Ukwu, I attended my primary school at Akaze Ukwu primary school but due to problem in 2007 1 stop schooling, I know Ajali Chukwu (f), she is from our village, I was bathing in the river with Ajali Chukwu on 31/8/09 when I pushed her and river carried her. I did not use stick on Ajali Chukwu.

The only problem I have with Ajali Chukwu is that she always disturb me whenever she saw me lying in the bush after going to toilet, she will be calling me all sorts of names but on that very 31/8/09 after calling me what she like, I met her in the river called Eziaku River where she was bathing. I pushed her when she was on a block inside the river and she drowned in the water. That’s all.”

​His oral testimony at the trial Court stated the same facts, though he added

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that they started fighting and as they both fought, they fell into the river where she was drowned.

The behavior of the Appellant before and after killing the deceased does not suggest even remotely that he was insane. What was revealed from his evidence is that the killing of the deceased was premeditated and out of pure malice as rightly held by the Court below. The evidence before the Court shows that he was fully conscious and he knew what he was doing at the time he killed the deceased. I find the judgment of the Court below unassailable and see no reason to disagree with the rejection of the defence of insanity in this case. I therefore resolve this issue against the Appellant.

ISSUE TWO Whether the Court below was right when it affirmed the decision of the trial Court that the prosecution proved the evidence of murder beyond reasonable doubt against the appellant through cogent and credible evidence required by law. It is submitted for the Appellant that the Prosecution had the burden to prove the guilt of the accused person beyond reasonable doubt and that such burden never shifts. Learned counsel contended that the

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only prosecuting witness who tendered exhibits A to J merely dumped the documents before the trial Court and the Appellant was denied the opportunity to cross examine on these documents, being that the IPO was not the maker of the documents.

According to learned counsel for the Appellant, every document tendered through the IPO is nothing but hearsay. He referred this Court to SECTION 37 of the EVIDENCE ACT 2011, as well as these cases: JAMB V ORJI (2008) 2 NWLR (PT 1072) 552; ARCHIBONG V THE STATE (2004) 1 NWLR (PT 855) 488; OCHIBA v. THE STATE (2011) 48 NSCQR 1 at 34.

He argued that hearsay evidence cannot be sufficient proof in a charge of murder. According to him, Exhibit F which is the autopsy report did not point directly to the cause of death; as to, whether it was strangulation or drowning, and since the maker of Exhibit F was not called in evidence, no weight ought to be attached to the document. He referred this Court to SECTIONS 67 and 68 of the EVIDENCE ACT.

He finally submitted that the penalty to be inflicted on the Appellant if the offence is proved, is the highest penalty that can be inflicted on any human

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being. He insisted that proof of it must be beyond any iota of doubt, and that the Prosecution has failed to do. He urged this Court to discharge and acquit the accused person.

In response, counsel for the Respondent submitted that proving the guilt of the accused person in any criminal offence must either be by: 1. Direct evidence 2. Confession 3. Circumstantial evidence.

He further submitted that for the offence of murder, the guilt of an accused person can be said to have been proved when the prosecution has established the following ingredients of the offence: 1. The deceased is dead. 2. That it was the act of the accused person that caused the death. 3. That the act of the accused person was intentional with knowledge that death or grievous bodily harm was its consequence.

Learned counsel for the Respondent posited that by the evidence of PW1, the Appellant strangulated the deceased and submerged her in the river. He further maintained that the Appellant affirmed this evidence in his extra judicial statement to the police. He relied on the provision of SECTION 67 of the EVIDENCE ACT 2011 and the

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case of OSENI v. STATE (2012) 5 NWLR (PT 1293) 351.

Learned counsel added, that assuming without conceding, that every other evidence be set aside, save the confessional statement of the Appellant; that in itself can secure the conviction of the Appellant. He commended this Court to the following cases: ARCHIBONG v. STATE (2004) 1 NWLR (PT 855) 488; GBADAMOSI v. THE STATE (1991) 6 NWLR (PT 196) 182. This Court is therefore urged to resolve this issue against the Appellant and affirm the concurrent decisions of the trial Court and the Court below.

Learned Counsel on both sides are ad idem on the ingredients of the offence of murder under Section 319 of the CRIMINAL CODE (supra), which the Prosecution is required to establish in order to secure conviction.

At the risk of being repetitive, I shall again state the ingredients to be proved by the Prosecution. They are: 1. That the victim died. 2. That the death of the deceased resulted from the act of the accused. 3. That the act of the accused was intended with the knowledge that death or grievous bodily harm was the intended consequence.

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See ALAO v THE STATE (2015) ALL FWLR (PT 795) 355. The onus on the Prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus, which rests squarely on the prosecution throughout the case, does not shift at all. Where the prosecution fails to prove any of the ingredients, the offence of murder would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted. See USMAN v. STATE (2015) LPELR 40855 (CA); BABATUNDE VS STATE (2014) 2 NWLR (PT 1391) 298.

It must however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the Prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the Prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt.

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ADELEKE VS STATE (2013) 16 NWLR (PT 1381) 556 BABARINDE VS STATE (2014) 3 NWLR (PT 1395) 568.

On the first ingredient of the offence of murder, it was not in contest between the parties that the person referred to in the charge against the Appellant as Ajali Amah is dead. The sole witness of the Prosecution testified to the death of the deceased and tendered a Medical Report dated 03/09/2009 and authored by one Dr. Monday N. Igwe of the General Hospital Ivo, which confirmed the death of the deceased and same was admitted in evidence at the trial as Exhibit F.

On the second ingredient of the offence, which is whether it was the act of the Appellant that caused the death of the deceased, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant. See: OCHE VS STATE (2007) 5 NWLR (PT 1021) 214, EKPOISONG VS STATE (2009) 1 NWLR (PT 1122) 354, ILIYASU VS STATE (2014) 15 NWLR (PT 1430) 245. This point was emphatically made by the Supreme Court in OFORLETE VS STATE (2000) 12

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NWLR (Pt 631) 415 thus: “In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it.

These are factual questions to be answered by a consideration of the evidence.”

On the issue of cause of death, all the exhibits tendered by the Respondent as Prosecution point unequivocally to the fact that the Appellant drowned the deceased. The learned counsel for the Appellant had made heavy weather of the fact that Exhibit F was not particular on the cause of death of the deceased; as to whether it was by strangulation or by drowning.

​ It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending

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act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death. See: AZU VS STATE (1993) 6 NWLR (PT 299) 303; AKPA VS STATE (2008) 14 NWLR (PT 1106) 72; JEREMIAH VS STATE (2012) 14 NWLR (PT 1320) 248.

The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased.

In this appeal under consideration, it is my view that the most proximate event to the death of the deceased is being thrown into the river which resulted in her being drowned. Whether there was strangulation or not before being thrown into the river is immaterial and I hold the view that the Respondent has led cogent evidence in proof thereof.

​This takes me to the second limb of the second ingredient of murder, whether it was

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the act of the Appellant that caused the death of the deceased.

It is settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes. See: NIGERIAN NAVY v. LAMBERT (2007) 18 NWLR (PT 1066) 300, ILODIGWE v. STATE (2012) 18 NWLR (PT 1331) 1, UMAR v. STATE (2014) 13 NWLR (PT 1425) 497.

Reading through the judgment appealed against, it is evident that the Court below, as well as the trial Court, relied heavily on the confessional statement of the Appellant, Exhibit G, which states inter alia thus: “I, Amaoge Chukwu (m) freely wish to state as follows: I am from Akaeze Ukwu, I attended my primary school at Akaze Ukwu primary school but do to problem in 2007 I stop schooling. I know Ajali Chukwu (f), she is from our village. I was bathing in the river with Ajali Chukwu on 31/8/09 when I pushed her and river carried her. I did not use stick on Ajali

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Chukwu. The only problem I have with Ajali Chukwu is that she always disturb me whenever she saw me lying in the bush after going to toilet, she will be calling me all sorts of names but on that very 31/8/09 after calling me what she like, I met her in the river called Eziaku River where she was bathing. I pushed her when she was on a block inside the river and she drowned in the water. That’s all.”

What is to be determined now is whether the Court below rightly relied on the Appellant’s extra judicial.

The law is trite that an accused person can be convicted solely on his confession if the confession is positive and direct in the admission of the offence charged. In other words, voluntary confession of guilt whether judicial or extra judicial, if it is direct and positive is sufficient proof of the guilt and is enough to sustain a conviction, so long as the Court is satisfied with the truth of such a confession. See SOLOLA VS. STATE (2005) 11 NWLR (PART 937) 460; EDHIGERE V STATE (1996) 8 NWLR (PT 464) 1. In ASIMI V.

STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus:

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“Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible.

It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.” It is now axiomatic that a confessional statement can ground the conviction of an accused person provided that it is direct and positive. It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, free, positive, so long as the Court is satisfied of its truth.

Such a confession would constitute proof of guilt of the maker and suffices as evidence upon which to ground or sustain his conviction. See: IDOWU VS THE STATE (2007) 9 NWLR (PT. 1038) 30; OZANA UBIERHO VS THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655.

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After all, a confession being an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence, it is good law that it is the best evidence in criminal trial that the accused committed the offence with which he is charged, so long it satisfies the requirement of the law. See IKPO VS THE STATE (2016) LPELR 40114 (SC); ADEKOYA VS THE STATE (2012) 9 NWLR (PT. 1306) 539; ASIMI VS THE STATE (2016) LPELR 40436 (SC). This is so because who else knows it better and can say it better than the accused who hatched and executed the crime?

This is why in ADEBAYO VS ATTORNEY GENERAL OGUN STATE (2008) 3 NCC 305 AT 308 Tobi JSC (as he then was), stated thus: Confession is the best evidence in criminal law. In it, the accused admits that he has committed the offence for which he is charged. For this purpose, the accused is the figural horse’s mouth. There cannot be better evidence.

The confession of the Appellant in Exhibit G proved beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased.

​The third ingredient to be considered is

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whether the act of the appellant was intentional with the knowledge that death was the probable consequences of his action.

I have had a thorough scrutiny of the evidence (both oral and documentary), adduced at the trial. In my view, all the evidence undoubtedly disclose that the Appellant pushed the deceased into the river, which led to her being drowned. The Appellant admitted that he pushed her into the river, which according to his oral testimony, was high in volume in the month of August and at the peak of the rainy season, when expectedly, the volume of the river would be very high.

It seems to me that the only rational inference that can be drawn from the acts of the Appellant by virtue of the uncontradicted and unchallenged oral and documentary evidence adduced at the trial, is that the acts of the Appellant which caused the death of the deceased, were intentional with knowledge that death or grievous bodily harm was the natural and probable consequence.

The Court below held inter alia, as follows: I cannot find any reason to disagree with the reasoning and conclusion of the learned trial judge. Without any other document, the

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confessional statement of the accused person, corroborated by his oral testimony in Court, is sufficient to ground the conviction of the Appellant. He went to meet with the deceased where she was bathing and pushed her into the river as a result of which she drowned. It is immaterial whether she was strangulated before she was pushed into the river. What is clearly established is that it was the action of the Appellant that resulted in the death of the deceased. The fact that the Appellant intended the consequence of his action is not in doubt… (See page 146 of the Record).

I find this decision of the Court below infallible and I agree wholly with them. The position of the law is that where there is evidence to support the concurrent findings of the two lower Courts, they will not be disturbed unless they are shown to be perverse, or a miscarriage of justice or violation of principles of law or procedure is shown on the Record. It is also settled that the onus lies on the Appellant to give good reasons why this Court should interfere with the concurrent findings of the two lower Courts. See: KURE v. COP (2020) LPELR 49378 (SC).

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In JOHN v. STATE (2019) LPELR 46936 (SC), this Court held as follows: “It is trite law that this Court would rarely interfere with concurrent findings of facts by the two Courts below except where such concurrent findings of facts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure. In such circumstances, this Court would not allow such perverse findings to stand.” See also ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED(2019) LPELR 46541 (SC).

Once an appellate Court finds that the conclusion reached by a lower Court is correct, it has no duty to interfere. Thus, the duty of an appellate Court to interfere will arise only where the finding, conclusion and/or decision of the lower Court is wrong and/or perverse. In law, a finding or conclusion of a Court is said to be perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters.

In all such circumstances, an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence

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in the printed record of appeal. See: OWOR V. CHRISTOPHER (2010) ALL FWLR (PT. 511) 962 @ P. 992; MINI LODGE LTD. V. NGEI (2010) ALL FWLR (PT. 506) 1806 @ PP. 1820 – 1821.

In the circumstances therefore, the Court below having made the correct findings and reached the correct conclusion based on the evidence on record, I see no reason to set it aside. The consequence of the above is that I also resolve this issue against the Appellant.

In the final analysis, I adjudge this appeal to be wholly unmeritorious and liable to be dismissed. Same is hereby dismissed by me. The judgment of the Court below, delivered on the 29th of June 2018, is hereby affirmed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had a preview of the leading judgment of my learned brother ABOKI JSC, and I agree with his reasoning and conclusion for dismissing the appeal.

The learned trial judge found the prosecution to have proved the case against the Appellant on credible and convincing evidence. A finding the Court of Appeal could not fault. There is no merit in the Appeal. Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance

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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 of reading in draft the judgment just delivered by my learned brother ABDU ABOKI, JSC, and I agree with the view that there is no merit in this appeal.

This is an appeal against the concurrent findings of fact by the High Court of Ebonyi State and the Enugu Division of the Court of Appeal finding the Appellant guilty of murdering one Ajali Amah. The Appellant unsuccessfully and without any evidence tried to advance the defense of insanity which was rejected by the two lower Courts. Both the trial and lower Courts did not have sufficient evidence to make a finding of not guilty by reason of insanity. The defence of insanity was not properly articulated by the defence during the trial.

This Court has no clear and admissible evidence to make a finding of insanity leading to the commission of the offence.

​There was uncontroverted eyewitness evidence of the crime. I find absolutely no merit in this appeal and it is hereby

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dismissed. Appeal dismissed.

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

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Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): On 25/1/2014, at Kalgo Town, Kalgo Local Government of Kebbi State, a group of hunters, including the Appellant and one Mohammed Bandi, went on a hunting, expedition, and a fight broke out over bush meat.

Offended by what Mohammed Bandi said to him during the fight, the Appellant used an axe to inflict injury on Mohammed Bandi’s head.

Mohammed Bandi was first taken to a Hospital in Birnin Kebbi, and was later transferred to the University Teaching Hospital, Sokoto, where he died twelve days later. The Appellant was arraigned before the High Court of Kebbi State and charged with the offence of culpable homicide punishable with death. After a trial in which four witnesses testified for the Prosecution, and he testified in his own defence, the Appellant was found guilty and was convicted and sentenced to death.

He appealed to the Court of Appeal but his appeal was dismissed; the Court of Appeal affirmed the decision of the trial Court. Aggrieved, he has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and he formulated the following issue in his Brief:

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Whether from the evidence before the trial Court, the Respondent proof (sic) the offence of culpable homicide with death beyond reasonable doubt against the Appellant.

The Respondent adopted the sole issue as formulated by the Appellant, including the use of the word “proof” instead of proved, in its own Brief.

I must say that the Issue for Determination as formulated by the Appellant and adopted by the Respondent leaves much to be desired. There was no mention of the Court of Appeal and it is well settled that there is no nexus or connection between this Court and the trial Court; not directly anyway. The Findings of a trial Court must be affirmed or reversed by the Court of Appeal before its decision gets to this Court – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, Djukpan V. Orovuyovbe (1967) 1 All NLR 134, Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271.

But this Appeal involves a death sentence, and it is clear that the issue for determination is simply whether the Court of Appeal was right to affirm the trial Court’s decision that the Appellant is guilty as charged for the offence of culpable homicide punishable with death. First of

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all, there was no direct evidence of what transpired between the Appellant and the deceased; no one saw him inflict injury on the deceased’s head. The first three witnesses called by the Prosecution only narrated what happened after the deceased was injured and taken to the Hospital(s).

However, the Appellant’s Confessional Statements to the Police were admitted in evidence as Exhibits 2 & 3 through the Investigating Police Officer, CpI. Abdullahi Lawal, who testified as PW4. In Exhibit 2, recorded by the said PW4 on 6/2/2014, the Appellant stated as follows:

On Saturday – 25/01/14 – – we went to the bush for hunting in a group, after we went there, we started fighting each other and the reason for the fight was bush meat. There is one man by name Mohd Bandi, he said he wanted to kill me during the fight, from there he remove his cutlass and I remove my own, from there I cut him on his head and I ran away inside town (sic), from there Police arrested me and brought me to the Police Station. I was in the Prison yard when I heard the information that Mohd Bandi has died.

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In Exhibit 3, recorded earlier on 27/01/14, he had stated as follows – It was on Saturday, 25/01/12 – – we went hunting to commemorate one of our member, by name Nasiru who his mother gave birth, myself, I was in Tauri group, while the victim was in the group of hunters. In the bush gauro. Then the victim Bandi said his boys suppose to kill me. When we return back to town, I saw Bandi coming from his house myself was passing the road, we met from there Bandi commented that he will kill me. From there we started fighting. Bandi has a knife, myself I have axe.

I was able to cut him on his head, he sustained injury blood was rushing all over. Then, I decided to run and hid in the bush, later I was arrested. I knew that Bandi was taken to Hospital. That is all my statement.

In his evidence as DW1, while testifying in his own defence, he said – On the 25th day of January 2014 at about 1 o’clock, I was in the bush on a hunting expedition. We were in a group so many of us. I know the Charge against me. On that they (sic) there was a fight over game, which included the use of sticks. I know Mohd Bondi. He was involved in the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bondi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty.

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In his Judgment delivered on 30/6/2015, the learned trial Judge, I. B. Mairiga, CJ, evaluated the evidence vis-a-vis ingredients of the offence, and found that “it was the injury inflicted on the head of the deceased”. He considered the “availability of the defence of self-defence and provocation under the scenario presented by the Defence”, and held – From the totality of evidence adduced before me – – neither the self-defence nor provocation can avail the Accused in the circumstances.

The Accused is accordingly found guilty as charged and is convicted of the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code. The Accused having (sic) is hereby sentenced to death.

In its Judgment of 8/6/2017, the Court of Appeal concluded as follows: The Appellant having used an axe in striking the deceased on the head, must have intended killing the deceased. Consequently, the trial Court has come to the correct conclusion that an offence of culpable homicide punishable with death has

5

been committed by the Appellant. Learned counsel for the Appellant has made an allusion that Exhibits 2 and 3 ought not to have been relied upon by the trial Court in convicting the Appellant, contending that same is a qualified confession. The word “qualified” connotes to some restriction or limitation. I have reproduced the relevant Statement of the Appellant and same in my view admits no limitation, restriction or condition.

A confessional statement made by an Accused Person which is properly admitted in evidence is in law, the best pointer to the truth of the role played by such Accused Person in the commission of the offence. Such confessional statement can be accepted as satisfactory evidence upon which alone the Accused can be convicted. In the instant case, it is clear from the Statement that the Appellant positively and unequivocally admitted hitting the deceased with an axe on the head. Thus, the confessional statement of the Appellant alone was sufficient to sustain his conviction.

I am not unaware of the fact that the Appellant, while testifying in chief retracted where he stated at page 26 of the Record: “I know Mohd Bandi. He was involved in

6

the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bandi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty”. Once the trial Court is satisfied, as the trial Court was in this case, that the Statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it. Thus, the U-turn made by the Appellant was of no avail. See FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 at 336.

In conclusion, I hold that this Appeal lacks merit and is accordingly dismissed. The Judgment of the lower Court, coram Hon. Justice I. B. Mairiga, CJ, …… delivered on 30/7/2015 is hereby affirmed.

It is the Appellant’s contention in this Appeal that the Court of Appeal erred in law when it affirmed the Judgment of the trial Court because there was no evidence to prove the ingredients of the offence charged. He argued that PW1, PW2 and PW3 gave hearsay evidence and pointed to discrepancies between his name and the names on Exhibits 2 and 3. To put it in his own words, he argued as follows at pages 5-7 of his Brief:

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Exhibit 2 is a statement made by one “Moh’d Sani S/Yaki.” The Appellant’s name is Mohammed Sani Kalgo. Exhibit 2, which is in a foreign language and not in [his] name cannot be used to convict [him]. Exhibit 3 – – is a statement made by one “Mohd Sani Kalgo S/Yaki”. The Appellants’ name is Mohammed Sani Kalgo hence Exhibit 3 is not relevant to [his] case. Assuming but not conceding that “Mohd Sani Kalgo S/Yaki’ in Exhibit 3 is the same as ‘Mohammed Sani Kalgo’ on the Charge Sheet – – The Court after judicially noticing [him] as an illiterate cannot assume that Exhibit 3 is made by [him].

Exhibit 2 in the name “Mohd Sani S/Yaki” is not the same as Exhibit 3 in the name “Mohd Sani Kalgo S/Yaki” – – The Appellant ‘Mohammed Sani Kalgo’, whose name did not appear on Exhibit 2 and 3 as such; but a different name “Mohd Sani S/Yaki” and “Mohd Sani Kalgo S/Yaki” created a whole lot of doubt as to whether the three names are one and the same thing. The trial Judge and the Respondent were wrong in law when they refused to clear this doubt by a corroborative evidence; hence such doubt will be resolved in favour of the Appellant.

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He also submitted that the said discrepancies and inconsistencies in the names on Exhibit 2 and Exhibit 3 and his own name is a fundamental and core issue, which must be resolved in his favour; and citing the case of Musa Ikaria V. State (2013) 8 NCC 253, he urged this Court to so hold.

The Appellant, who filed a 9-page Brief, had nothing more to say. The Respondent filed a 15-page Brief, wherein it canvassed arguments and made submissions ranging from the ingredients of the said offence to the state of the law on means of proof and confessional Statements.

The points made by the Respondent are well taken but the fact is that the Appellant concentrated all his arguments on the discrepancies between his name on the Charge Sheet and names on Exhibits 2 and 3.

On this score, the Respondent simply submitted that “the days of technicalities are over”; that the facts and circumstances of this case are so glaring that the identification of who killed the deceased is not in doubt; that the attitude of the Courts now is to do substantial justice without undue adherence to technicalities, citing Adelusola V. Akinde (2004) 18 NSCQLR 371, Fagunwa V. Adibi (2004) 19 NSCQLR 415; and that the Prosecution had proved its case beyond reasonable doubt.

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Now, it is an established principle of criminal law that the burden of proving a fact, which if proved, would lead to the conviction of the Accused Person, is on the Prosecution, and the Prosecution is enjoined to prove such fact beyond reasonable doubt. What is more, any doubt as to the guilt of the Accused must be resolved in favour of the Accused -Ahmed V. State (1999) 7NWLR (Pt. 612) 641, Oforlete V. State (2000) 12 NWLR (PL 681)415, Kalu V. State (1988) 4 NWLR (Pt. 90) 502/513. The legal definition of doubt is “to question or hold questionable.

Uncertainty of mind; the absence of a settled opinion or conviction”; and a “reasonable doubt” is defined as “such a doubt as would cause a reasonable and prudent person – – to pause and hesitate to act upon the truth of the matter charged. It does not mean a mere possible doubt, because everything relating to human affairs – – is open to some possible or imaginary doubt”- legal-dictionary.thefreedictionary.com.

10

As the Respondent rightly submitted, the Prosecution must prove its case “beyond reasonable doubt”, and as Oputa, JSC, observed in Bakare V. State (1987) 1 NWLR (Pt. 52) 579, the said standard of proof “stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice”. He further explained as follows: 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 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”.

11

In the case now on appeal, it is possible that a man slipping and falling and hitting his head on a motorcycle pedal may sustain some injury to the head but it is highly improbable that he will have a cut as deep and as wide as that described by the medical evidence of PW6. Also, it is to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No, the burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable.

Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case. So, as much as the Prosecution has to prove its case against an Accused “beyond reasonable doubt”, the emphasis is on the word “reasonable”, and the word “reasonable” means “fair, proper or moderate under the circumstances; according to reason”- see Black’s Law Dictionary, 9th Ed.

In this case, the Appellant insists that the three different names in the Charge Sheet and the Confessional Statements created doubts in the case against him; and the trial Court and Respondent were wrong “when they refused to clear this doubt by a corroborative evidence”.

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I have gone through the Record of Appeal, and I cannot see where the Appellant raised an objection on this ground to warrant a complaint that the trial Court and the Respondent refused to clear the said doubt, and this is not the time and place to raise such an Issue in this Court. This Court has repeatedly said that the appropriate time to object to the admissibility of a Statement said to be a Confession is when the Statement is sought to be tendered-see Oseni V.

State (2012) 5 NWLR. (Pt. 1293) 351, wherein I.T, Muhammad, JSC (as he then was) observed: The Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating [the] confessional statement with utmost caution. It [is] too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. – – It is too late to seek to retract such confessional statement after its admission without objection from the defence.

It is – -taken as an afterthought, which Courts are not ready to accommodate.

13

In this case, the Appellant did not object to the admissibility of the said Confessional Statements [Exhibits 2 & 3], when the Prosecution applied to tender them in evidence through PW4; he did not raise the issue in in his Final Address; and the trial Court did not consider any such issue. The Notice of Appeal he filed at the Court of Appeal contains five Grounds of Appeal but there is no complaint therein regarding the said discrepancies, and the Court of Appeal did not consider any such issue.

So, the Appellant is raising this issue for the first time in this Court, but he is asking for the impossible because, this Court is not in a position to consider any issue that was not determined by the two lower Courts – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, wherein this Court held: It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere.

Any Judgment – -founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the Judgment appealed against ideally is not an appeal against

14

such a Judgment. Since an Appellant’s right of appeal is circumscribed within the parameters of the Judgment appealed against, this Court will not lightly permit impugning the Judgment on grounds of error other than are contained therein.

Moreover, an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court because as this Court observed in Ibafidon V. Igbinosun (2001) 8 NWLR (Pt. 716) 653, “such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony”.

Be that as it may, looking at the merits of the case, I have to agree with the Respondent that the identification of who killed the deceased, is not an issue in this case. Yes, the Prosecution is enjoined to prove its case beyond reasonable doubt, and yet, not all doubts are reasonable. Reasonable doubt automatically excludes unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt-a doubt not borne out by the facts and circumstances of the case – see Bakare V. State (supra).

15

In this case, the Appellant admitted in his evidence as DW1 that he fought with the deceased; that the fight included “use of matchets”. that the deceased struck him; and he, the Appellant, “struck him back”. In Exhibit 2, the Appellant stated that he cut the deceased on the head, and in Exhibit 3, he stated that after he used his axe to cut the deceased on the head, “he sustained injury (and) blood was rushing all over”. So, the Appellant linked himself to the injury on the head of the deceased.

In affirming the trial Court’s finding that it was the injury on the deceased’s head that caused his death, the Court of Appeal observed: It is not in contest that Muhamad Bondi Kalgo – – is dead. It is also on record that the deceased sustained injury on the head as a result of which he was rushed to the Hospital wherein he died after 12 days of admission at the Usman Danfodio University Teaching Hospital, UDUTH. Likewise, there is no other person that struck the deceased with an axe on the head.

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I agree. There is no other person that struck the deceased on the head with an axe except the Appellant, and in the circumstances of this case, the discrepancies in the names on the Charge Sheet and Exhibits 2 & 3, could not have raised any doubts in the Prosecution’s case against him.

The concurrent findings of the two lower Courts are unassailable. The Appellant’s confession in Exhibits 2 & 3 rings true and is in harmony with his admission as DW1 that he struck the deceased during a fight.

This Appeal lacks merit. It fails and it is dismissed. I affirm the Judgment of the Court of Appeal that upheld the trial Court’s decision.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading in draft a copy of the leading judgment delivered by my learned brother, AUGIE, JSC. I am satisfied that concurrent findings of facts by both Courts below cannot be disturbed. Accordingly the Appeal lacks merit. It is also dismissed by me.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Amina Adamu Augie, JSC just delivered. I agree entirely that the appellant has failed to show any special circumstances to warrant interference with the concurrent findings of fact made by the two lower

17

Courts, particularly as the appellant positively and unequivocally confessed to the crime in his extra judicial statement, which was admitted at the trial without any objection.

I find no merit in the appeal. For the reasons well stated by my learned brother, I also dismiss the appeal and affirm the judgment of the lower Court. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Augie, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit.

As His Lordship pointed out in the leading judgement, it is an established principle of criminal law that the burden of proving a fact, which if proved, would lead to the conviction of the accused person, is on the Prosecution. This is true. Indeed, this is an offshoot of the prescription that in criminal cases, the burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances, such as where an accused person raises a defence of insanity, The State v.

Emine [1992] 7 NWLR (pt. 256) 658; Ogundiyan v The State [1991] 3 NWLR (pt. 181) 519; [1991] 4 SCNJ 44; Alonge v IGP (1959) 4 FSC 203; [1959] SCNLR 516.

18

This notion of the Prosecution’s burden derives from our accusatorial criminal justice system under which, in contradistinction to the inquisitorial system, it is anathematic to expect an accused person to purge himself of guilt since the fundamental law of the country, the Constitution, avails him of the presumption of innocence until proven otherwise, Uso v C. O. P [1972] NSCC 631; Kinnami v. Bauchi Native Authority (1957) NRNLR 42, approvingly, adopted in Ani and Anor v The State (2009) LPELR -488 (SC) 14 -15, D-E; Section 36 (5) thereof.

This is, actually, a fundamental principle of most commonwealth penal laws, often couched in the ancient maxim in dubio pro reo – a principle which has been interpreted as imposing the burden of proving the guilt of an accused person on the prosecution, Obiakor v. State (2002) 10 NWLR (pt. 776) 612; Bello v State (2007) 10 NWLR (pt. 1043) 564, 585 Oladele v. Nigerian Army (2004) 6 NWLR (pt. 868) 166.

In the instant case, the concurrent findings of the lower Courts are unassailable. There is no merit in this appeal. It is for these, and the more detailed,

19

reasons in the leading judgement that I shall dismiss this appeal as the arguments in support thereof are, entirely, vacuous. I abide by the consequential orders in the leading judgment. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Amina Adamu Augie, JSC, just delivered and I agree that this appeal be dismissed on the reasons and conclusion advanced by him.

A fight broke out over bush meat on 25/ 1/2014 at Kalgo town, Kalgo Local Government Area, Kebbi State, when a group of hunters including the Appellant with one Mohammed Bandi went for hunting. The Appellant offended by what Mohammed Bandi, the deceased, said unto him during the fight, used an axe to inflict injury on his head. From the hospital in Birnin Kebbi, he was transferred to the University Teaching Hospital Sokoto, where he died after 12 days. Charged with culpable homicide punishable with death, the Appellant was convicted and sentenced to death.

He lost his appeal at the lower Court, hence this appeal. He sought for determination: ​Whether from the evidence before the trial Court, the Respondent proof (sic) the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant.

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The Appellant’s defence at the trial Court was self defence and provocation, which same were discountenanced. To simultaneously put up self defence and provocation is to shoot oneself at the foot. Accused persons who scamble for defences to save themselves from drowning often go into unpardonable errors to lump up defences that cannot agree or betray their innocence and inculpability in an offence.

Self defence and provocation are not birds of the same feather nor same bed fellows, hence, wherever and whenever they are raised together, the innocence of the accused person is already jeopardized. PER CHIMA CENTUS NWEZE, JSC in EMMANUEL OGAR AKONG EDOKO V. THE STATE (2015) LPELR-24402(SC) (PP. 62- 63, PARAS. A-C), expatiated the matter thus: Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same code provides for the defence of provocation in Section 284.

Whilst the former [the defence of self defence] is an exculpatory defence, because, where it is established, it exonerates the accused person…the latter (the

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defence of provocations) is, merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter. In effect, the defence of provocation does not exonerate the accused person.

It only earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter…It is thus, the dissimilarity in the consequences of the availability of these defences that make them mutually exclusive, that is, that make them inconsistent defences – defences that cannot avail an accused person at the same time ….

​Being a concurrent judgment and endorsed by my learned brother Augie, JSC, this appeal therefore fails and is hereby dismissed.

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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.